# A.T. v. Dry Creek Joint Elementary School District

> District Court, E.D. California · March 16, 2021

URL: https://www.frixlaw.com/law-library/cases/10025964

## Case

- **Court:** District Court, E.D. California
- **Decided:** March 16, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 A.T., a minor, by and through his No. 2:16-cv-02925-MCE-DB
Guardian ad Litem L.T.,
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Plaintiff,
13 MEMORANDUM AND ORDER
v.
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DRY CREEK JOINT ELEMENTARY
15 SCHOOL DISTRICT, PLACER
COUNTY OFFICE OF EDUCATION,
16 PLACER COUNTY CHILDREN
SYSTEM OF CARE, and the following
17 individuals, who are named in their
individual capacities: KD ASHTON,
18 BECKY BRAVO, PETER BALDO, LIZ
LEE, CINDY STONE, RENEE
19 VERDUGO, MARY BOEHM, CHRISTY
CARTER, WENDY DEVORE, DONNA
20 KEARNS, LISA HEWITT, TAMMY
PETERSON, STEPHANIE DILBECK,
21 JEN ROGERS, VALERIE MILLER,
DAVID MOUL, DEBBIE CANNON,
22 JUDY BENNEY, REBECCA RATEKIN,
CARLEY ROSE JACKSON, LAURI
23 MCNALLY, SANDRA MOORE, and
DOES 1-30,
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Defendants.
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26 Through this action, Plaintiff A.T., a minor, by and through his Guardian ad Litem
27 L.T. (“Plaintiff”), alleges that, inter alia, Placer County Office of Education (“PCOE”)
28 Defendants Peter Baldo, Judy Bennie, Mary Boehm, Becky Bravo, Debbie Cannon,
1 Stephanie Dilbeck, Lisa Hewitt, Valerie Miller, Sandra Moore, Cyndi Stone, Jen Rogers,
2 Christy Carter, KD Ashton, Liz Lee, and Donna Kearns (collectively “PCOE Defendants”)
3 were liable for injuries to A.T. while he was a special education student at Secret Ravine
4 School (“Secret Ravine”). Presently before the Court is Plaintiff’s Motion to Set Aside
5 Judgment filed on April 08, 2020. Mot. to Set Aside Judgment, ECF No. 119 (“Motion”).
6 PCOE Defendants filed a timely opposition to the motion. Opp’n, ECF No. 123. Plaintiff
7 timely filed a reply. Reply, ECF No. 126. For the reasons set forth below, Plaintiff’s
8 Motion to Set Aside Judgment is DENIED.1
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10 BACKGROUND2
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12 This case was initiated in this Court on December 14, 2016. Underlying this
13 matter are allegations – all under federal law – that Plaintiff was subject to unlawful
14 physical restraints and seclusions while a special education student at Secret Ravine.
15 PCOE Defendants, along with other defendants, filed a Motion to Dismiss the original
16 Complaint and/or Motion for a More Definite Statement as to all causes of action and
17 raised qualified immunity as a defense. On June 16, 2017, the Court issued a
18 Memorandum and Order, dismissing the original Complaint’s Third, Fourth, and Fifth
19 Causes of Action against the Public Entities, with prejudice. This Court dismissed
20 Plaintiff’s First and Second Causes of Action against PCOE Defendants and other
21 defendants, without prejudice, for failing to state a claim, permitting leave for Plaintiff to
22 amend.
23 Plaintiff filed his First Amended Complaint (“FAC”) on July 31, 2017, re-asserting
24 the First and Second Causes of Action contained in the original Complaint against PCOE
25 Defendants. ECF No. 69, FAC ¶¶ 135-150. PCOE Defendants filed a Motion to Dismiss

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1 Because oral argument would not be of material assistance, the Court ordered this matter
submitted on the briefs. ECF No. 121; see E.D. Cal. Local R. 230(g).
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2 The procedural background is taken, sometimes verbatim, from PCOE Defendants’ Opposition
28 brief. ECF. No. 123. No material facts are disputed.
1 the FAC as to the remaining two causes of action. ECF Nos. 73, 74.
2 On June 20, 2018, the Court issued a Memorandum and Order granting PCOE
3 Defendants’ motions as to the Second Cause of Action but denying the motions as to the
4 First Cause of Action under 42 U.S.C. § 1983 for alleged violations under the Fourth
5 Amendment. ECF No. 86. The Second Cause of Action was dismissed with prejudice.
6 ECF No. 86, at 12. PCOE Defendants again based their motion to dismiss on a theory
7 of qualified immunity, which this Court rejected. See ECF No. 74, at 9-13; ECF No. 86.
8 Plaintiff thereafter filed a Second Amended Complaint setting forth his claims, consistent
9 with the Court’s order on the motions to dismiss. See ECF Nos. 88, 90.
10 On July 18, 2018, PCOE Defendants filed an interlocutory appeal of the June 20,
11 2018 to the Ninth Circuit Order denying their motion to dismiss Plaintiff’s First Cause of
12 Action based on qualified immunity. ECF Nos. 91, 93. This case was thereafter stayed
13 pending outcome of the appeal. ECF No. 105.
14 On December 24, 2019, the Ninth Circuit reversed this Court, holding that PCOE
15 Defendants were entitled to qualified immunity. ECF No. 111. The Ninth Circuit issued
16 its Mandate on January 15, 2020. ECF No. 112. On January 22, 2020, this Court
17 issued a Minute Order dismissing PCOE Defendants with prejudice in light of the Ninth
18 Circuit’s reversal. ECF No. 113. On February 21, 2020, Plaintiff filed a Motion to Lift
19 Stay Following Appeal. ECF No. 115. The Court granted the Motion to Lift Stay on its
20 own motion on April 6, 2020. ECF No. 118. On April 8, 2020, Plaintiff filed the instant
21 Motion to Set Aside the Judgment (ECF No. 119), which PCOE Defendants now oppose.
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23 STANDARD
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25 Rule 60(b) allows a district judge to provide relief from final judgment on the
26 grounds of “(4) the judgment is void; . . . or . . . (6) any other reason that justifies relief.”
27 Fed. R. Civ. Proc. 60(b)(4), (6). “A motion under Rule 60(b) must be made within a
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1 reasonable time . . . .” Id. at 60(c)(1).3 Further, under the Local Rules, when an
2 application for reconsideration –
3 is made upon the same or any alleged different set of facts,
counsel shall present to the Judge . . . what new or different
4 facts or circumstances are claimed to exist which did not exist
or were not shown upon such prior motion, or what other
5 grounds exist for the motion; and . . . why the facts or
circumstances were not shown at the time of the prior motion.
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Cal. E.D. Local Rule 230(j)(3-4).
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“Federal Rule of Civil Procedure 60(b)(4) expressly allows for final judgments to
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be declared void in some circumstances . . . . But the scope of what constitutes a void
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judgment is narrowly circumscribed, and judgments are deemed void only where the
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assertion of jurisdiction is truly unsupported.” Hoffmann v. Pulido, 928 F.3d 1147, 1151
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(9th Cir. 2019) (citations omitted). “The list of such infirmities is exceedingly short;
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otherwise, Rule 60(b)(4)'s exception to finality would swallow the rule.” United Student
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Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010). “A judgment is not void, for
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example, simply because it is or may have been erroneous.” Id. (citing Hoult v. Hoult, 57
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F.3d 1, 6 (1st Cir. 1995)) (internal quotation marks omitted). “Rule 60(b)(4) applies only
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in the rare instance where a judgment is premised either on a certain type of
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jurisdictional error or on a violation of due process that deprives a party of notice or the
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opportunity to be heard.” Id. at 271. Rule 60(b)(4) may be appropriate when, for
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instance, a district court dismisses a case during the pendency of an interlocutory appeal
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while the district court was divested of jurisdiction. See, e.g., Williams v. Brooks, 996
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F.2d 728, 730 (5th Cir. 1993).
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Rule 60(b)(6) is used “sparingly as an equitable remedy to prevent manifest
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injustice.” United States v. Alpine Land & Reservoir Co., 984 F.2d 1047, 1049 (9th
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Cir.1993). “To receive relief under Rule 60(b)(6), a party must demonstrate
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3 PCOE Defendants do not appear to challenge the timeliness of this Motion, and the Court finds
no reason to believe that the motion is untimely. See Briley v. Hidalgo, 981 F.2d 246, 249 (5th Cir. 1993)
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(“[T]here is no time limit on an attack on a judgment as void. The one-year limit applicable to some Rule
60(b) motions is expressly inapplicable . . . .”) (citing Wright & Miller, Federal Practice and Procedure:
28 Civil, § 2862, 197-98 (1973)). The matter will thus not be discussed further.
1 ‘extraordinary circumstances which prevented or rendered him unable to prosecute [his
2 case].’” Lal v. California, 610 F.3d 518, 524 (9th Cir. 2010) (quoting Cmty. Dental Servs.
3 v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002)) (alteration original). While a change in law
4 may suffice as an extraordinary circumstance, it generally will not in preference of
5 finality. See, e.g., Priester v. JP Morgan Chase Bank, N.A., 927 F.3d 912, 913 (5th Cir.
6 2019); Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 277 (3d Cir. 2002); see also
7 Lindauer v. Rogers, 91 F.3d 1355, 1357 (9th Cir. 1996). A 60(b)(6) motion “is addressed
8 to the discretion of the district court.” 11 Wright & Miller, Federal Practice and Procedure
9 § 2864 (3d ed.) (collecting cases).
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11 DISCUSSION
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13 A. This Court’s Judgment Was Not Void When Entered
14 Plaintiff avers:
15 By the Court’s own order, it lacked power over the proceedings
until its stay [was] lifted. Without jurisdiction to enter a
16 judgment over the “subject matter” . . . of qualified immunity for
the PCOE Defendants during the pendency of a stay, the
17 judgment is void and must be set aside pursuant to FRCP
60(b)(4).
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Motion at 4.
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Plaintiff appears to base this belief on three arguments: (1) there was an
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automatic stay over the first cause of action (regarding PCOE Defendants’ qualified
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immunity), so the Court could not act on that cause of action pending appeal; (2) the
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Court’s own stay prevented court action until the stay was lifted; and (3) the entry of
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judgment dismissing PCOE Defendants following the Ninth Circuit memorandum
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deprived Plaintiff’s procedural due process rights. See Motion at 3-4. Each is
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addressed in turn.
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Plaintiff states that during the interlocutory appeal to the Ninth Circuit on the topic
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of PCOE Defendants’ qualified immunity, the divestiture of this Court’s authority over the
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1 case was “automatic” until the appellate court resolved the matter. Motion at 3 (citing,
2 inter alia, Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992)); see also Order Granting
3 Stay (“Stay”), ECF No. 105, at 2 (acknowledging the automatic stay as to the first cause
4 of action against PCOE Defendants). Plaintiff acknowledges that the Court did retain
5 power to address ancillary matters and maintain the status quo, but he insists that the
6 Court could “not finally adjudicate substantial rights directly involved in the appeal.”
7 Motion at 3-4 (quoting Neary v. Padilla, 222 F.3d 1184, 1190 (9th Cir.2000)) (emphasis
8 omitted). Yet, Plaintiff next concedes that once the Ninth Circuit issued its mandate, the
9 Court resumed jurisdiction over the case. Motion at 4 (citing In re Marino, 234 B.R. 767,
10 770 (B.A.P. 9th Cir. 1999)); see, e.g., Kusay v. United States, 62 F.3d 192, 194 (7th Cir.
11 1995) (“Just as the notice of appeal transfers jurisdiction to the court of appeals, so the
12 mandate returns it to the district court.”).
13 Reviewing the docket, the automatic stay went into place on July 18, 2018, when
14 PCOE Defendants filed their notice of appeal. ECF No. 91. The Ninth Circuit’s mandate
15 was issued January 15, 2020 (ECF No. 112) – i.e., the automatic stay ended that day.
16 On January 22, 2020, this Court dismissed PCOE Defendants with prejudice. ECF No.
17 113. Thus, nothing about the automatic stay stemming from PCOE Defendants’ appeal
18 casts doubt on this timeline of events, because the Court received jurisdiction over that
19 matter on January 15, 2020.
20 Next, Plaintiff avers that the Court’s own stay prevented Court action until the stay
21 was lifted. Plaintiff correctly observes that while this Court dismissed PCOE Defendants
22 on January 22, 2020, the stay was not lifted until February 21, 2020. ECF Nos. 113,
23 116. Plaintiff concludes that the Court did not have jurisdiction over the question of
24 qualified immunity for PCOE Defendants until the stay was lifted, so the dismissal was
25 void under FRCP 60(b)(4). See Motion at 4. However, a review of the actual stay order
26 dispels such a theory. In the order, this Court acknowledged the automatic stay as to
27 the first cause of action against PCOE Defendants because the question of qualified
28 immunity as to that legal theory was on appeal. Stay at 2. In “the interest of judicial
1 economy,” the Court stayed “the remaining proceedings pending a decision by the Ninth
2 Circuit Court of Appeals . . . .” Stay at 3 (emphasis added). Plaintiff’s argument thus
3 fails for two reasons. First, the stay was only regarding the “remaining proceedings,” not
4 the first cause of action against PCOE Defendants, because progress on that matter was
5 already automatically stayed. Next, even assuming the stay impacted the first cause of
6 action, the Order’s own language allowed the Court to act once a decision was issued by
7 the Ninth Circuit, which occurred on January 15, 2020. Even Plaintiff concedes: “If the
8 stay as to PCOE Defendants had been lifted automatically upon the issuance of the
9 mandate, then Plaintiff acknowledges that the judgment would not technically be void
10 under FRCP 60(b)(4).” Reply at 6.
11 Finally, Plaintiff argues that dismissing PCOE Defendants without the opportunity
12 to first address the Ninth Circuit’s holding deprived him of procedural due process,
13 meaning notice and the opportunity to be heard. Motion at 4. Because this contention is
14 parallel to Plaintiff’s 60(b)(6) argument, it is addressed below.
15 In conclusion, Plaintiff’s assertion that the entry of judgment dismissing PCOE
16 Defendants was void for lack of jurisdiction under FRCP 60(b)(4) is without merit. While
17 PCOE Defendants observe that the Court could “simply re-issue the Order now that the
18 stay has been lifted” (Opp’n at 13-14), the Court sees no need to engage in such
19 finessing of the record for the foregoing reasons. Finally, even if an insignificant
20 procedural timing error did occur, “it is well-settled that a mere error in the exercise of
21 jurisdiction does not support relief under Rule 60(b)(4).” Oakes v. Horizon Fin., S.A.,
22 259 F.3d 1315, 1319 (11th Cir.2001).
23 B. No Extraordinary Circumstances Warrant Relief Under FRCP 60(b)(6)
24 Plaintiff next avers that even if the dismissal of PCOE Defendants was not
25 procedurally in error, it was substantively so. Plaintiff believes he “should have the right
26 to replead given that the intervening change in law occurred in this very same case.”
27 Motion at 3; see Motion at 5 (“[T]here is little question that the Ninth Circuit set out a new
28 rule of law for the alleging of constitutionally excessive physical force in the context of
1 students with emotional and behavioral issues.”). Specifically, Plaintiff believes that he
2 should be able to replead his allegations because only now is it “abundantly clear that
3 allegations of purely punitive uses of force by school officials are needed to defeat the
4 putatively ‘blanket’ qualified immunity that the Ninth Circuit has seen fit to afford actions
5 taken pursuant to an IEP or other behavioral plan.” Motion at 6. Before, Plaintiff
6 contends, “pleading at such a granular level was neither required nor expected,” which is
7 why “specific instances of punitive use of force were not alleged previously,” even
8 though, Plaintiff contends, such instances did occur. See Motion at 6.
9 As to “new law,” Plaintiff declares that the Ninth Circuit’s decision held that “where
10 a protective plan is in place, a student could not use incidents that were protective in
11 nature to establish unconstitutional restraint or seizure.” Motion at 5 (citing A.T. v. Baldo,
12 798 F. App’x 80, 85 (9th Cir. 2019)). Plaintiff avers: “This . . . change in and refinement
13 of the law that was heretofore unknown in the Ninth Circuit and constitutes an
14 ‘extraordinary circumstance’ justifying the setting aside of the judgment.” Motion at 5.
15 Finally, Plaintiff states that a “dismissal on qualified immunity typically triggers a right to
16 replead.” Motion at 6-7 (citing Cooper v. Berkebile, No. CIV.A. 3:09-CV-0187, 2010 WL
17 454863, at *4 (N.D. Tex. Feb. 10, 2010)).
18 1. The Court of Appeals Did Not Create New Law
19 It is accurate that the Ninth Circuit opinion recognized that relatively few courts
20 have addressed unreasonable seizures in the school setting, and “[t]his is particularly
21 true in the specific context at issue in this case: the use of physical restraints and
22 seclusion by school officials to address the behavioral challenges posed by a severely
23 emotionally disturbed student.” A.T., 798 F. App’x at 83; see Reply at 3. However, the
24 Ninth Circuit’s memorandum took issue with this Court’s execution and analysis
25 regarding existing law. See A.T., 798 F. App’x at 85. The memorandum did not set out
26 to create new law or establish clear boundaries in the setting of educator qualified
27 immunity that did not exist before. Rather, the appellate court consistently rejected
28 Plaintiff’s arguments, using terminology such as “[w]e have recognized” to assert that
1 Plaintiff’s legal theories do not defeat qualified immunity based on precedential law. See
2 Id. at 84 (emphasis added). Moreover, the fact that the panel chose not to publish its
3 disposition undermines Plaintiff’s contention that it was breaking new ground. In
4 summary, this Court concludes that the appellate court did not create new law, but rather
5 applied established law in a manner that this Court did not accomplish in the first
6 instance.

7 2. Plaintiff Had Ample Opportunity to Address PCOE Defendants’
Qualified Immunity Defense
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9 From the beginning of this matter, PCOE Defendants have raised the defense of
10 qualified immunity. See ECF No. 11, at 9-13. Plaintiff asserts that he included “no
11 allegations of specific instances of the use of purely punitive force” in his operative
12 complaint because such incidents “were not considered necessary to state a claim under
13 pre-A.T. precedent.” Motion at 6. Only now, post-A.T., does Plaintiff recognize the need
14 to provide such factual assertions. Motion at 6. This argument does not withstand
15 scrutiny.
16 In its second footnote, the A.T. Court provided several in-circuit cases that
17 expressly stated that a student has a right to be free of excessive or arbitrary punitive
18 conduct. A.T., 798 F. App'x at 83 n.2; see Preschooler II v. Clark Cty. Sch. Bd. of
19 Trustees, 479 F.3d 1175, 1181-82 (9th Cir. 2007); Doe ex rel. Doe v. Hawaii Dep’t of
20 Educ., 334 F.3d 906, 909-10 (9th Cir. 2003); P.B. v. Koch, 96 F.3d 1298, 1301-03 (9th
21 Cir. 1996). In other words, Plaintiff was on notice that such allegations may defeat a
22 claim of educator qualified immunity, but he failed to assert them despite several
23 opportunities to do so. In fact, as highlighted by PCOE Defendants, Plaintiff did cite to
24 these same cases in his opposition to PCOE Defendants’ Motion to Dismiss the first
25 amended complaint based on qualified immunity (ECF No. 77, at 10), but the cases were
26 factually distinguishable. See Reply at 15. To reiterate, the appellate court’s decision
27 was simply not based on novel law: “[I]n all cases in this area where Fourth Amendment
28 violations have been found, the teacher or school official’s actions clearly fell under the
1 rubric of ‘arbitrary and excessive corporal punishment.’” A.T., 798 F. App'x at 84.
2 Next, Plaintiff states that a “dismissal on qualified immunity typically triggers a
3 right to replead.” Motion at 6-7 (citing Cooper v. Berkebile, No. CIV.A. 3:09-CV-0187,
4 2010 WL 454863, at *4 (N.D. Tex. Feb. 10, 2010); Schultea v. Wood, 47 F.3d 1427,
5 1433 (5th Cir.1995)). While not dispositive, the Court first notes that these cases are
6 both factually distinguishable and not binding. In Cooper, the plaintiff was a pro se
7 prisoner, and the court spent considerable time discussing the plaintiff’s failure to
8 successfully navigate his claim through the judicial system. See Cooper, No. CIV.A.
9 3:09-CV-0187, 2010 WL 454863, at *2-3. In the instant matter, there is no question that
10 Plaintiff is represented by accomplished and learned counsel. Next, the Cooper Court
11 held that “when a public official raises the defense of qualified immunity, the court should
12 afford the plaintiff an opportunity to amend his complaint to directly engage the assertion
13 of qualified immunity . . . .” Id. at *4 (emphases added). Again, no such facts exist in
14 this case because PCOE Defendants have relied on the defense of qualified immunity
15 from the beginning of the matter (see ECF No. 11, at 9-13), and Plaintiff has had ample
16 opportunity to address it.4 Regardless, based on this Court’s reading of the Ninth Circuit
17 memorandum, setting aside judgment and granting leave to amend would not be
18 appropriate despite Plaintiff’s belief that newly asserted factual allegations would defeat
19 qualified immunity.

20 3. The Court’s Dismissal of PCOE Defendants Was Consistent with
the Appellate Court’s Memorandum
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22 It is undisputed that the Ninth Circuit did not expressly instruct this Court to
23 dismiss PCOE Defendants following the appellate court’s issuance of the A.T. decision.
24 See Opp’n at 19; Reply at 8. Indeed, the appellate court’s disposition was simply that
25 PCOE Defendants were entitled to qualified immunity. See A.T., 798 F. App’x at 84-85.
26 Plaintiff thus contends that there were “no grounds for implying such a dismissal in the
27 absence of such direction.” Reply at 8. Nevertheless, this Court finds that dismissal was

28 4 Schultea is distinguished for similar reasons. See Schultea, 47 F.3d at 1429-33.
1 necessary based on the mandate of the appellate court.
2 “In its earliest days this Court consistently held that an inferior court has no power
3 or authority to deviate from the mandate issued by an appellate court.” Briggs v.
4 Pennsylvania R. Co., 334 U.S. 304, 306 (1948) (collecting cases). However, a lower
5 court may “decide anything not foreclosed by the mandate.” Hall v. City of Los Angeles,
6 697 F.3d 1059, 1067 (9th Cir. 2012) (citing Herrington v. Cnty. of Sonoma, 12 F.3d 901,
7 904 (9th Cir.1993)). When the lower court is weighing issues never considered at the
8 appellate level, the mandate requires “respect for what the higher court decided, not for
9 what it did not decide.” Id. (quoting United States v. Kellington, 217 F.3d 1084, 1093
10 (9th Cir.2000) (emphasis original).
11 Here, the Ninth Circuit’s disposition was clear as to PCOE Defendants: “[W]e hold
12 that [PCOE Defendants] are entitled to qualified immunity because they did not violate
13 clearly established law at the time of the alleged violations.” A.T., 798 F. App’x at 84.
14 Moreover, the court went further, noting that even if PCOE Defendants knew what they
15 were doing was morally wrong and outside Plaintiff’s IEP, PCOE Defendants would still
16 be covered by qualified immunity. Id. at 84-85. In its reversal of this Court’s holding, the
17 panel stated that the “real question in this case” was whether clearly established law in
18 the applicable timeframe prevented PCOE Defendants from using restraints and
19 seclusion – even if “often in excess” of Plaintiff’s IEP. Id. at 85. Per the court, “the
20 answer to that question is no.” Id. Thus, as the “scope of the remand is clear” (Hall, 697
21 F.3d at 1067), and the allegations of “purely punitive force against Plaintiff” were never
22 sufficiently set forth despite multiple opportunities to do so (see Motion at 6), this Court
23 declines to find an “extraordinary circumstance” that justifies a reconsideration of its
24 dismissal order.
25 ///
26 ///
27 ///
28 ///
1 CONCLUSION
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3 In consideration of the foregoing, the Court DENIES Plaintiff's Motion to Set Aside
4 | Judgment, ECF. No. 119.
5 IT IS SO ORDERED.
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7 Dated: March 16, 2021
8 □ late JES.
Whip AX XC -
° SENIOR UNITED STATES URTRICT JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10025964. Public record. Not legal advice.