Walker v. Portland Public School No. 1J

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JAMOIA WALKER, as guardian ad litem for Case No. 3:21-cv-01349-IM

K.B., a minor,

OPINION AND ORDER GRANTING

Plaintiff, DEFENDANTS PORTLAND PUBLIC

SCHOOL DISTRICT NO. 1J, SUSAN

v. KOSMALA, AND MICHAEL

LAFRAMBOISE’S MOTION TO

PORTLAND PUBLIC SCHOOL DISMISS PLAINTIFF’S SECOND

DISTRICT NO. 1J, an Oregon public school AMENDED COMPLAINT

district, FIRST STUDENT, INC., an Ohio

corporation, SUSAN KOSMALA,

MICHAEL LAFRAMBOISE, and JOHN

GRAPPONE,

Defendants.

Kimberly Hope Sherman, Education, Environmental, & Estate Law Group LLC, P.O. Box 728,

Eugene, OR 97440. Attorney for Plaintiff.

J. Michael Porter and Souvanny Miller, Miller Nash LLP, 111 SW Fifth Avenue, Suite 3400,

Portland, OR 97204. Attorneys for Defendants Portland Public School District No. 1J, Susan

Kosmala, and Michael LaFramboise.

IMMERGUT, District Judge.

Jamoia Walker (“Walker”) brings this action as the guardian ad litem for K.B.,1 a minor

1 For ease of reference, this Court refers to K.B. as “Plaintiff” in this Opinion.

child, who attended school at Portland Public School District No. 1J (“PPS”). This Court

previously granted a Motion to Dismiss Plaintiff’s Amended Complaint, ECF 27, filed by

Defendants PPS, Susan Kosmala, and Michael LaFramboise (collectively, “PPS Defendants”)

but gave Plaintiff leave to amend as to Plaintiff’s claims under 42 U.S.C. § 1983. ECF 52 at 11.

Before this Court is PPS Defendants’ Motion to Dismiss Plaintiff’s Second Amended Complaint.

ECF 62. This Court finds that the Second Amended Complaint fails to cure the deficiencies this

Court identified with the First Amended Complaint. Accordingly, PPS Defendants’ Motion to

Dismiss, ECF 62, is GRANTED.

BACKGROUND

The following allegations are taken from Plaintiff’s Second Amended Complaint. ECF

57. This case arises out of the alleged mistreatment Plaintiff suffered while riding a school bus

on October 4, 2016.2 Id. at ¶ 28. At that time, Plaintiff was a second-grade student enrolled in the

Pioneer Behavior Program, a public-school placement program within Buckman Elementary

School and PPS for students with significant behavioral challenges. Id. at ¶¶ 4, 8, 17, 19–20.

Plaintiff had multiple disabilities, including autism, emotional disturbances, behavioral disorders,

and difficulty communicating. Id. at ¶ 4. Plaintiff received special education services and had an

Individualized Education Program (“IEP”). Id. at ¶¶ 4, 17. At the time of the events in question,

Defendant Michael LaFramboise (“LaFramboise”) was the principal of the Pioneer Behavior

Program, and Defendant Susan Kosmala (“Kosmala”) was the principal of Buckman Elementary

School. Id. at ¶¶ 8–9. Both Kosmala and LaFramboise were PPS employees. Id.

For the start of his second-grade year, Plaintiff was assigned to Bus 411/Route 451

2 The parties agree that the incident in question occurred on either October 3, 2016 or

October 4, 2016, see ECF 57 at ¶ 76, but for ease of reference, and consistent with the parties’

briefing, this Court refers to the incident as occurring on October 4, 2016.

(“bus”) for transportation to and from school. Id. at ¶ 23. Plaintiff began riding the bus on

September 6, 2016—the first day of school. Id. The bus was operated by Defendant First

Student, Inc. (“First Student”), a private transportation organization, through a contract with

PPS. Id. at ¶ 6. The bus was driven by Defendant John Grappone (“Grappone”), a First Student

employee. Id. at ¶ 7.

Due to his disabilities, Plaintiff had difficulty managing his emotions and behaviors in a

safe manner and reacted to negative interactions with peers by punching, kicking, spitting, biting,

swearing, running from staff, taunting his peers, throwing objects, crying, yelling, or thrashing

on the floor. Id. at ¶ 18. In September 2016, Walker, Plaintiff’s guardian, became aware that

other students on the bus were bullying Plaintiff. Id. at ¶ 24. However, the Second Amended

Complaint concedes that during the month of September, Walker “was not aware of the

frequency and duration of the bullying” on the bus. Id. Nonetheless, the Second Amended

Complaint alleges that Walker spoke with Kosmala “on multiple occasions” between September

6, 2016 and the incident on October 4, 2016 about student bullying on the bus and the need for

an aide on the bus. Id. at ¶ 25. Kosmala assured Walker in early September that she was “looking

into placing an aide” on the bus. Id. at ¶ 26. Also in September, Walker asked Kosmala if all of

the parents and students from the bus could meet together with Walker and Plaintiff to discuss

the bullying incidents. Id. at ¶ 27. Kosmala responded that she believed that “one of the

guardians of one of the other children would ‘not be able to handle it.’” Id. Rather than speak to

them as a group, Kosmala stated that she would speak with other students and their parents

individually. Id.

On or about October 4, 2016, Grappone called Walker during Plaintiff’s bus ride from

school, reported that Plaintiff was “out of control,” and informed Walker that she needed to

come meet the bus and remove Plaintiff from the bus. Id. at ¶¶ 28–29. Grappone subsequently

called Bus Dispatch and then the police and requested that police officers meet the bus, which

they did. Id. at ¶¶ 30–31. When Walker arrived at the scene, the bus had already left. Id. at ¶ 32.

Walker called Bus Dispatch and asked if it “was the bus company’s policy to call the police on a

seven-year-old boy who was being bullied,” and the dispatcher replied that it was. Id.

Walker spoke with LaFramboise after the October 4, 2016 incident—during this

conversation, LaFramboise reported that “he had been aware of multiple incidents of unsafe

student behaviors on the bus prior to the October 4, 2016 incident.” Id. at ¶¶ 34–35. LaFramboise

informed Walker that, at times, PPS staff had met the bus en route “to assist in managing student

behaviors” and that he had, on multiple occasions, heard radio communications regarding

disturbances on the bus and that he prepared to travel to meet the bus on many such occasions

but “decided not to.” Id. at ¶¶ 39–40. LaFramboise had heard the radio call on October 4, 2016

and was preparing to travel to meet the bus, but was told by PPS Transportation not to respond to

the incident. Id. at ¶ 41. Kosmala also reported to Walker that she had, on several occasions,

driven out to meet the bus en route to help manage student behavior and either ride on the bus or

remove a child and drive the child back to the school. Id. at ¶¶ 36–37.

The bus was equipped with video surveillance technology, see id. at ¶ 55, and on or

around October 4, 2016, Walker asked Kosmala to provide her with videos of the bullying that

took place on the bus, id. at ¶ 56. However, because the videos contained images of other

students, Walker was told that PPS could not release the videos to her, id.; nonetheless, Kosmala

“transcribe[d]” the videos for Walker and, on November 10, 2016, provided her with a

transcription for a portion of the bus video dated October 4, 2016, id. at ¶¶ 58–59. In March

2017, LaFramboise provided Walker with two additional transcripts dated “10-9-2016” and “10-

3-2016.” Id. at ¶ 60. On March 24, 2017, Walker “formally requested that PPS preserve the

videos relating to bus trips between September 26 and October 15, 2016” and any other videos

that had been distributed to administrators regarding Plaintiff and incidents on the bus. Id. at

¶ 66.

Over three years later, at some point between December 21, 2019 and January 5, 2020,

Plaintiff allegedly disclosed to Walker that his bus driver had held him down and that “he was

pushed into the seat with his face down and arms behind his back two times.” Id. at ¶ 68. On

February 11, 2020, Walker renewed her request to PPS for video footage, id. at ¶ 70, and on or

about May 28, 2020, Walker received three videos, which roughly aligned with the three

transcripts she had previously received, id. at ¶ 72.

The first video is labeled “451_09202016_Buckman_AM.” Id. at ¶ 73. While this label

suggests that the video shows the bus ride on September 20, 2016, the transcript that matches the

audio on this video is labeled as “10/9/2016.” Id. This video purportedly shows other students

teasing and taunting Plaintiff. Id. at ¶ 74. Eventually, Plaintiff leaves his seat and begins to hit

another student. Id. At that point, Grappone pulls the bus over, picks up Plaintiff, and physically

returns him to his seat. Id. According to Plaintiff, Grappone did “not employ any approved

methods of safe holds,” and his “voice and body language [were] amplified[,] . . . aggressive[,]

and loud.” Id. at ¶ 75.

A second video is labeled “451_10032016_Buckman_PM.” Id. at ¶ 76. While this label

suggests that the video shows the bus ride on October 3, 2016, the transcription of the audio for

this video is labeled “10/4/2016.” Id. Plaintiff alleges that this video shows the incident in

question, see id., which this Court refers to as the October 4, 2016 incident. According to the

Second Amended Complaint, during this bus ride, multiple students tease and taunt Plaintiff, and

Grappone takes no action. Id. After about four minutes, Plaintiff says something to the students

and yells; Grappone tells Plaintiff to “relax,” but otherwise takes no further action. Id. at ¶ 77.

After about another minute of the teasing and name-calling by the other children, Grappone tells

Plaintiff to “calm down” but still does not intervene. Id. at ¶ 78. The other children continue

“screaming insults” at Plaintiff for another ten minutes. Id. Grappone ignores the other students

until Plaintiff responds, at which point Grappone scolds Plaintiff. Id.

After about another fifteen minutes, Plaintiff leaves his seat, and a fight ensues between

Plaintiff and the other students. Id. at ¶ 79. Grappone then parks the bus and “pulls [Plaintiff’s]

shoulders back to disengage [him] from the other student,” but Plaintiff begins to struggle

against Grappone, kicking at him and struggling to free his arms. Id. at ¶¶ 79–80. Grappone

subsequently “lifts [Plaintiff] by his shoulders, picks him up off the bus bench where he had been

standing, and forces [him] into the seat.” Id. at ¶ 81. Grappone “continues to press his body

against [Plaintiff] in the seat while he contacts Bus [D]ispatch for assistance.” Id. During this

time, Plaintiff yells that he can’t breathe and that Grappone is hurting him. Id. at ¶¶ 81–82.

Grappone responds that he is not, that he is “just holding [Plaintiff’s] legs down.” Id. Grappone

then puts Plaintiff’s hands “in a cross-wrist pincer hold.” Id. at ¶ 83. When Plaintiff yells that

Grappone is hurting him, Grappone turns to face the surveillance camera and says to the camera

“I’m restraining him very lightly on the camera.” Id. Police officers eventually arrive at the

scene. Id. at ¶ 84.

A third video is labeled “451_10032016_Buckman_PM _2,” id. at ¶ 86, indicating that it

shows the bus ride on October 3, 2016. The transcription of the audio for this video is also

labeled “10/03/2016.” Id. at ¶ 87. The video appears to show the time period directly following

the incident shown in the second video. Id. at ¶ 86. Plaintiff is wearing the same clothes as in the

second video, and there is mention of the police being called. Id. The video shows Plaintiff

“subdued in his seat” for the entire video. Id.

Plaintiff filed this action in federal court on September 13, 2021 against PPS Defendants,

First Student, and Grappone. ECF 1. On November 25, 2021, Plaintiff filed a First Amended

Complaint, alleging federal claims under 42 U.S.C. § 1983 against PPS Defendants, First

Student, and Grappone as well as state law claims for negligence against PPS, First Student, and

Grappone, assault and battery, abuse of a vulnerable person, and intentional infliction of

emotional distress against First Student and Grappone, and spoliation against PPS. ECF 24 at

¶¶ 101–320. PPS Defendants and First Student moved to dismiss. ECF 27; ECF 30. First Student

also moved for a more definite statement under Rule 12(e) and to strike portions of Plaintiff’s

complaint under Rule 12(f). ECF 30. This Court granted PPS Defendants’ motion to dismiss for

failure to state a claim as to Plaintiff’s state law negligence claims and spoliation claims with

prejudice. ECF 52 at 23–24. However, this Court gave Plaintiff leave to amend his federal

claims. Id. at 11–12. This Court denied First Student’s motion to dismiss for violation of Rule 8

and Rule 10, id. at 8, 10–11, and denied First Student’s motion to strike, id. at 10. However, this

Court granted First Student’s motion for a more definite statement as to Plaintiff’s deliberate

indifference claim. Id. at 9. On September 9, 2022, Plaintiff filed a Second Amended Complaint.

ECF 57. PPS Defendants again move to dismiss Plaintiff’s Second Amended Complaint for

failure to state a claim. ECF 62.

LEGAL STANDARDS

A motion brought under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v.

Block, 250 F.3d 729, 732 (9th Cir. 2001). A motion to dismiss for failure to state a claim may be

granted only when there is no cognizable legal theory to support the claim or when the complaint

lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New

Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation omitted). In

evaluating the sufficiency of a complaint’s factual allegations, the court must accept as true all

well-pleaded material facts alleged in the complaint and construe them in the light most

favorable to the non-moving party. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

(9th Cir. 2010) (citation omitted). To be entitled to a presumption of truth, allegations in a

complaint “may not simply recite the elements of a cause of action, but must contain sufficient

allegations of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all

reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus., Inc. v.

Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S.

662, 678–79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal

quotation marks omitted) (quoting Iqbal, 556 U.S. at 678).

DISCUSSION

Plaintiff’s Second Amended Complaint asserts two claims under 42 U.S.C. § 1983

against PPS Defendants for excessive force and deliberate indifference. In Claim 1.1, Plaintiff

asserts a Fourth Amendment excessive force claim under a Monell theory against PPS. ECF 57 at

¶¶ 100–128. In Claims 2.1 and 2.3, Plaintiff asserts a Fourteenth Amendment deliberate

indifference claim under a Monell theory against PPS, id. at ¶¶ 142–163, and under a supervisory

liability theory against Kosmala and LaFramboise, id. at ¶¶ 176–197.

The constitutional harm alleged in each of Plaintiff’s claims against PPS relates to

Grappone’s alleged use of excessive force against Plaintiff. While Plaintiff alleges that Kosmala

and LaFramboise were deliberately indifferent to student bullying on the bus, Plaintiff contends

that this hostile environment led to Plaintiff’s reactions to his peers and ultimately to Grappone’s

alleged violation of Plaintiff’s constitutional rights. See, e.g., id. at ¶ 149, 193–94. Indeed, in

Plaintiff’s Second Amended Complaint, Plaintiff explains that after reviewing the transcripts

provided by PPS, Walker continued to believe that the issues on the bus stemmed from bullying

by other students, and not from Grappone’s conduct, id. at ¶¶ 50, 61, 67, and it wasn’t until

Walker learned of Grappone’s conduct over three years later that Plaintiff brought this action, id.

at ¶ 68. Plaintiff’s briefing further clarifies that the basis for Plaintiff’s claims is Grappone’s

conduct. See, e.g., ECF 66 at 3 (“PPS can be held directly liable for the actions of its

contractors[.]”); id. at 5 (“Fourteenth Amendment claims may be brought against PPS for the

acts of First Student and Grappone.”); id. at 10 (“Kosmala and LaFramboise are liable for the

harms inflicted by Defendant Grappone . . . .”).

PPS Defendants move to dismiss all claims against them for failure to state a claim. ECF

62. Because each of Plaintiff’s claims against PPS flows from the alleged acts and omissions of

PPS employees, Kosmala and LaFramboise, this Court begins with Plaintiff’s claim for

individual liability against Kosmala and LaFramboise.

A. Claim 2.3: Deliberate Indifference Claim (Supervisory Lability) against Defendants

Kosmala and LaFramboise

To state a claim under Section 1983, a plaintiff must allege “(1) acts by the defendants

(2) under color of state law (3) depriving [him] of federal rights, privileges[,] or immunities (4)

[and] causing [him] damage.” Shoshone-Bannock Tribes v. Fish & Game Comm’n, Idaho, 42

F.3d 1278, 1284 (9th Cir. 1994). “In order for a person acting under color of state law to be

liable under section 1983 there must be a showing of personal participation in the alleged rights

deprivation: there is no respondeat superior liability under section 1983.” Jones v. Williams, 297

F.3d 930, 934 (9th Cir. 2002). Because there is no respondeat superior liability under Section

1983, Kosmala and LaFramboise may be held liable only “if there exists either (1) his or her

personal involvement in the constitutional deprivation, or (2) a sufficient causal connection

between the supervisor’s wrongful conduct and the constitutional violation.” Starr, 652 F.3d at

1207 (citation omitted).

The Ninth Circuit has explained that “[s]upervisory liability is imposed against a

supervisory official in his individual capacity for his own culpable action or inaction in the

training, supervision, or control of his subordinates, for his acquiescence in the constitutional

deprivations of which the complaint is made, or for conduct that showed a reckless or callous

indifference to the rights of others.” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d

1175, 1183 (9th Cir. 2007) (alteration in original) (citation omitted). “[T]he claim that a

supervisory official knew of unconstitutional conditions and culpable actions of his subordinates

but failed to act amounts to acquiescence in the unconstitutional conduct of his subordinates and

is sufficient to state a claim of supervisory liability.” Keates v. Koile, 883 F.3d 1228, 1243 (9th

Cir. 2018) (internal quotation marks and citation omitted).

PPS Defendants move to dismiss Plaintiff’s supervisory liability claims against Kosmala

and LaFramboise. Defendants argue that Plaintiff fails to allege personal involvement in the

constitutional violation by either Kosmala or LaFramboise and fails to allege a sufficient causal

connection between their conduct and the alleged constitutional deprivation. ECF 62 at 11. PPS

Defendants argue that, even if Kosmala and LaFramboise were aware of student bullying on the

bus prior to the incident on October 4, 2016, Plaintiff fails to allege that either Kosmala or

LaFramboise had any reason to believe that Grappone was involved. Id. Rather, “Plaintiff’s

allegations seek to link Kosmala and LaFramboise to the student bullying, and then link student

bullying to the bus driver’s excessive force.” Id.

Plaintiff alleges that Kosmala and LaFramboise had supervisory authority over Grappone

and the safety conditions for students on the bus, ECF 57 at ¶ 181, and that Kosmala and

LaFramboise “knew or should have been aware of [Grappone’s] assaults of [Plaintiff] and the

bullying and harassment [Plaintiff] was subjected to, possessed capacity to implement change

necessary to stop assaults, and failed to do so,” id. at ¶ 190. Plaintiff claims that Kosmala and

LaFramboise failed to require Grappone receive training in safeholds for students with

disabilities, failed to require Grappone have access to and an understanding of the students’

Behavior Support Plans, and failed to require that an aide be placed on the bus to assist with

managing student behavior. Id. at ¶¶ 188–91. Plaintiff further alleges that by “choosing to react,”

rather than prevent, unsafe student behavior on the bus, Kosmala and LaFramboise’s actions and

omissions “led directly to Grappone’s inappropriate and assaultive actions” against Plaintiff on

October 4, 2016. Id. at ¶ 193. Plaintiff argues that because Kosmala and LaFramboise were

aware of student bullying, were aware of Grappone’s lack of adequate training, and were aware

of Grappone’s failure to manage unsafe student behavior, Kosmala and LaFramboise should

have known that Grappone would deprive Plaintiff of his constitutional rights. ECF 66 at 12–13.

In this Court’s Opinion and Order on PPS Defendants’ first Motion to Dismiss, this Court

found that none of the allegations contained in the First Amended Complaint suggest that

Kosmala or LaFramboise knew of any alleged constitutional violations involving Grappone on

the bus before the October 4, 2016 incident. ECF 52 at 13–14. The Second Amended Complaint

contains additional factual allegations pertaining to the information known to Kosmala and

LaFramboise. First, Plaintiff clarifies that Walker spoke with Kosmala “on multiple occasions

between September and October 4, 2016” about student bullying and the need for an aide on the

bus. ECF 57 at ¶ 25. Second, Plaintiff alleges that Walker spoke with LaFramboise following the

October 4, 2016 incident and that LaFramboise reported that he had been aware of multiple

incidents of unsafe student behavior on the bus prior to the October 4, 2016 incident. Id. at ¶ 35.

LaFramboise informed Walker that, at times, PPS staff had met the bus en route to assist in

managing student behavior and that he had, on multiple occasions, heard radio communications

regarding disturbances on the bus and that he prepared to travel to meet the bus on many such

occasions but decided not to. Id. at ¶¶ 39–40. In fact, LaFramboise had heard the radio call on

October 4, 2016 and was preparing to travel to meet the bus, but was told not to by PPS

Transportation. Id. at ¶ 41. Plaintiff also now alleges that Kosmala reported to Walker that she

had, on several occasions, driven out to meet the bus en route to help manage student behavior

and either ride on the bus or remove a child and drive the child back to the school. Id. at ¶¶ 37–

38.

This Court finds that none of the new allegations contained in the Second Amended

Complaint suggest that Kosmala or LaFrambroise knew or should have known about Grappone’s

conduct toward Plaintiff until after the October 4, 2016 incident occurred. The Second Amended

Complaint still alleges only that Kosmala and LaFrambroise were aware of student bullying on

the bus by September 2016, at the earliest. See id. at ¶¶ 24–25. Indeed, Plaintiff only began

riding the bus on September 6, 2016, which was the first day of the 2016 school year and less

than one month before the incident in question. Id. at ¶ 23. And while Plaintiff also alleges that

beginning on or around October 4, 2016, PPS staff members viewed video surveillance from

Plaintiff’s bus rides, id. at ¶ 55, there are no allegations that Kosmala or LaFramboise viewed

video surveillance prior to the incident in question or regularly watched video surveillance from

the bus. As with the First Amended Complaint, Plaintiff does not allege that Kosmala or

LaFramboise were aware that Grappone was involved in any misconduct. See Keates, 883 F.3d at

1243 (holding that supervisory liability may be imposed when an official “knew of

unconstitutional conditions and culpable actions of his subordinates but failed to act”).

Moreover, at least with respect to Kosmala, Plaintiff does not allege that Kosmala failed

to act. Rather, Plaintiff alleges that Kosmala was looking into placing an aide on the bus, id. at

¶ 26, offered to speak to parents and students to address student bullying on the bus, id. at ¶ 27,

and drove to meet the bus en route to assist with managing student behavior, id. at ¶¶ 36–37.

While these allegations demonstrate that Kosmala was aware of issues with student behavior on

the bus, the allegations also show that Kosmala was taking steps to address and alleviate these

issues—all within the first few weeks of the 2016 school year. These steps are inconsistent with

acquiescence in Grappone’s alleged misconduct and with reckless or callous disregard to

Plaintiff’s constitutional rights. See Preschooler II, 479 F.3d at 1183.

Nor does Plaintiff allege any personal involvement in the misconduct on the part of

Kosmala or LaFramboise. See Starr, 652 F.3d at 1207 (citation omitted). Further, the Second

Amended Complaint again makes conclusory allegations that Kosmala and LaFramboise failed

to train, supervise, or support Grappone, which directly caused the alleged unconstitutional

conduct. ECF 57 at ¶¶ 186–87, 189. In fact, Plaintiff concedes that supervisors may only be held

liable for the constitutional violations of government actors over whom they have “actual

supervisory authority,” ECF 66 at 10 (citing Felarca v. Birgeneau, 891 F.3d 809, 820 (9th Cir.

2018)), and Plaintiff previously conceded that Plaintiff does not yet know “[w]hether Kosmala

and La[F]ramboise had direct or tangential supervisory authority over Grappone.” ECF 38 at 16.

Plaintiff alleges that PPS’s duties under state and federal law to provide transportation to

students make Kosmala and LaFramboise the supervisors of Grappone, an employee of a

contracted transportation provider, id. at 12, but alleges no additional facts from which this Court

can infer that Kosmala or Laframboise had actual supervisory authority over Grappone. See

Felarca, 891 F.3d at 820 (concluding that supervisors cannot be held liable for the constitutional

violations of persons beyond their control or solely by virtue of their office).

This Court finds that the allegations against Kosmala and LaFramboise in Plaintiff’s

Second Amended Complaint are still too speculative and do not suffice to state a claim for

supervisory liability. See Iqbal, 556 U.S. at 678 (explaining that a court is “not bound to accept

as true a legal conclusion couched as a factual allegation” (quoting Twombly, 550 U.S. at 555));

see also Keates, 883 F.3d at 1243 (finding allegations that a defendant “promulgated

unconstitutional policies and procedures which authorized the particular conduct . . . and thus

directly caused [another defendant’s] allegedly unconstitutional conduct” were insufficient to

state a claim of supervisory liability).

1. Qualified Immunity

Nevertheless, even if this Court were to find for Plaintiff on the issue of supervisory

liability, Plaintiff has failed to show why Kosmala and LaFramboise are not entitled to qualified

immunity. “The doctrine of qualified immunity protects government officials from liability for

civil damages . . . .” Wood v. Moss, 572 U.S. 744, 757 (2014) (citation omitted); see also

Krainski v. Nev. ex rel. Bd. of Regents, 616 F.3d 963, 968 (9th Cir. 2010). “Qualified immunity

attaches when an official’s conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.” White v. Pauly, 580 U.S. 73 (2017) (per

curiam) (internal quotation marks and citation omitted). The Supreme Court has “stressed the

importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v.

Bryant, 502 U.S. 224, 227 (1991) (per curiam). “To overcome qualified immunity, ‘existing

precedent must have placed the statutory or constitutional question beyond debate.’” Hughes v.

Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018)). The plaintiff bears the burden of showing the right was clearly established. Id. The

Ninth Circuit has explained that “[p]laintiffs must point to prior case law that articulates a

constitutional rule specific enough to alert these [defendants] in this case that their particular

conduct was unlawful.” Sharp v. Cnty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017). “To

achieve that kind of notice, the prior precedent must be ‘controlling’—from the Ninth Circuit or

Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside the relevant

jurisdiction.” Id. (citation omitted).

Plaintiff has not met this burden. Plaintiff concedes that “[n]o binding caselaw currently

exists in the Ninth Circuit that present facts substantively similar to the facts presented here.”

ECF 66 at 16. Instead, Plaintiff points this Court to a Seventh Circuit case in which police

officers abandoned three children on an eight-lane highway after arresting their uncle. Id.;

see White v. Rochford, 592 F.2d 381, 382 (7th Cir. 1979). One Seventh Circuit case that

considers wholly unrelated facts is certainly not enough to have placed the constitutional

question at issue in this case beyond debate. This Court recognizes that government actors may

still be on notice that their conduct violates established law in novel factual circumstances in

obvious or egregious cases. See Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020); see also Hope v.

Pelzer, 536 U.S. 730, 741 (2002); Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001). This

is not such an obvious or egregious case where, notwithstanding the lack of judicial guidance,

Kosmala and LaFramboise’s conduct was so clearly violative of a constitutional right that they

should have known their actions were unconstitutional. Accordingly, PPS Defendants’ Motion to

Dismiss as to Plaintiff’s supervisory liability claim for deliberate indifference against Kosmala

and LaFramboise is GRANTED with prejudice.

B. Claim 2.1: Deliberate Indifference Claim (Monell) against Defendant PPS

Plaintiff also brings a deliberate indifference claim against Defendant PPS based on a

Monell theory. The Supreme Court has held that in certain circumstances, a municipality may be

held liable under Section 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978).

“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at

691. Rather, “[p]ursuant to 42 U.S.C. § 1983, a local government may be liable for constitutional

torts committed by its officials according to municipal policy, practice, or custom.” Weiner v.

San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000) (citing Monell, 436 U.S. at 690–91).

To establish Monell liability based on deliberate indifference, a plaintiff must show the

following: (1) the plaintiff was deprived of a constitutional right; (2) the municipality had a

policy, longstanding practice, or custom; (3) the policy, practice, or custom amounted to

“deliberate indifference to the plaintiff’s constitutional right;” and (4) the policy, practice, or

custom was “the moving force behind the constitutional violation.” Dougherty v. City of Covina,

654 F.3d 892, 900 (9th Cir. 2011) (citation omitted). “[P]roof of a single incident of

unconstitutional activity is not sufficient to impose liability under Monell.” Gant v. Cnty. of Los

Angeles, 772 F.3d 608, 618 (9th Cir. 2014) (citations omitted).

Monell liability can also arise from a failure to train, supervise, or discipline that amounts

to a deliberate indifference to individuals’ constitutional rights. Horton by Horton v. City of

Santa Maria, 915 F.3d 592, 602–03 (9th Cir. 2019). Deliberate indifference is “a stringent

standard of fault, requiring proof that a municipal actor disregarded a known or obvious

consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410

(1997). To show deliberate indifference, a plaintiff must demonstrate that the need “for more or

different action is so obvious, and the inadequacy [of existing practice] so likely to result in the

violation of constitutional rights, that the policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.” Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d

1136, 1141 (9th Cir. 2020) (alteration in original) (internal quotation marks omitted).

PPS Defendants moves to dismiss Plaintiff’s Monell claims because Plaintiff fails to

allege that PPS, through Kosmala and LaFramboise, had actual knowledge that Grappone had

reacted with excessive force prior to the October 4, 2016 incident. ECF 62 at 10. As a result, PPS

Defendants contend that the Second Amended Complaint does not contain plausible factual

allegations that PPS Defendants (1) “ignored facts about [Grappone’s] excessive force” prior to

the incident at issue, (2) “failed to train, supervise or reprimand [Grappone] after learning about

[his] use of excessive force” prior to the incident at issue, or (3) “engaged in deliberate

indifference” to Grappone’s excessive force. Id. PPS Defendants further argue that Plaintiff does

not allege constitutional harm resulting from a policy, practice, or custom. Id.

Plaintiff alleges that PPS is liable for Grappone’s conduct under a Monell theory because

Kosmala and LaFramboise failed to “implement[] safety measures designed to prevent unsafe

student behaviors and assaultive bus driver restraints,” failed to supervise train, and reprimand

Grappone, and failed to place an aide on the bus. ECF 57 at ¶¶ 147, 153–157. And further,

through the actions or omissions of Kosmala and LaFramboise, PPS was allegedly deliberately

indifferent to the bullying of Plaintiff, and these acts and omissions “constitute adoption of

official practices, customs, and/or policies.” Id. at ¶¶ 149, 151. Plaintiff also alleges that PPS

“knew or should have known about the practices described . . . as these practices are so well

settled as to constitute a custom or usage,” “failed to take affirmative actions to prevent the

actions alleged,” and, in so doing, “ratified the actions of [] Grappone.” Id. at ¶ 151. Plaintiff

argues in his briefing that failures to correct a known problem constitute a practice, custom, or

policy and that a policy, practice, or custom can likewise be established through PPS’s

“delegation of its statutory responsibility for the transportation of disabled children” to First

Student “without instructions for safe transportation.” ECF 66 at 4–5.

This Court finds that Plaintiff has failed to allege the existence of a policy, practice, or

custom that amounted to deliberate indifference to Plaintiff’s constitutional rights and that the

policy, practice, or custom was the moving force behind the deprivation of Plaintiff’s

constitutional rights. Plaintiff’s allegations regarding policies, practices, or customs are

conclusory, and the Second Amended Complaint lacks well-pleaded facts that plausibly suggest

these alleged policies, practices, and customs exist. Plaintiff states he is “aware of one specific

incident” of “Grappone engag[ing] in physically assaultive and intimidating behavior”—the

October 4, 2016 incident. ECF 57 at ¶ 15. Plaintiff references one additional incident that

occurred in September 2016 where Grappone picked Plaintiff up and returned him to his seat on

the bus without employing an “approved method of safe holds for restraining a child in

emotional meltdown.” Id. at ¶¶ 74–75.3 However, “a single incident of unconstitutional activity

is not sufficient to impose liability under Monell,” Gant, 772 F.3d at 618 (citations omitted), nor

are “isolated or sporadic incidents.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Nor has

Plaintiff argued that this single incident of misconduct falls within the “narrow range of

circumstances” in which single-incident liability has been found. See Bryan Cnty., 520 U.S. at

409. Plaintiff’s allegations regarding failure to train, supervise, or discipline are also insufficient

to amount to the “stringent” deliberate indifference standard. See id. at 410. As stated above,

Plaintiff only began riding the bus less than one month before the October 4, 2016 incident and

does not allege that Kosmala, LaFramboise, or any other PPS staff were aware of any other

incidents involving Grappone prior to the October 4, 2016 incident. Accordingly, this Court

cannot conclude that PPS ignored risks so known or obvious as to amount to deliberate

indifference. This Court finds that Plaintiff has failed to state a claim for deliberate indifference

based on official policy, practice, or custom or on failure to train, supervise, or discipline.

3 Plaintiff also concedes that it is not clear when this second incident even occurred,

alleging that the incident took place either on September 20, 2016 or October 9, 2016. ECF 57 at

¶ 73. If the incident took place on October 9, 2016, it would have occurred after the incident at

issue. And as this Court noted in its previous Opinion and Order, see ECF 52 at 21 n.14, Plaintiff

attempts to supplement the incidents by pleading that “upon information and belief,” Grappone

“likely was assaultive to [Plaintiff] on prior occasions.” ECF 57 at ¶ 15. Though the Ninth

Circuit has found that a plaintiff may plead facts based on information and belief, the court

explained that this applies “where the facts are peculiarly within the possession and control of

the defendant or where the belief is based on factual information that makes the inference of

culpability plausible.” Soo Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017) (citations

omitted). The relevant facts regarding an alleged pattern of assault on Plaintiff by Grappone are

not known only by Defendants—Plaintiff himself would be in possession of any such facts.

Moreover, Plaintiff includes no factual allegations as to conduct related to other students or by

other bus drivers which may indicate a widespread policy, practice, or custom. See Pozos Leon v.

Tillamook Cnty. Sch. Dist., No. 3:17-440-PK, 2018 WL 2175949, at *7 (D. Or. May 11, 2018)

(noting that where school district and its employees “knew that [student transportation] policies

were not being followed and that similar incidents to what happened to [the child] happen ‘four

or five times a year’”).

In his response, Plaintiff raises two additional arguments. Plaintiff argues that while the

Fourteenth Amendment does not generally impose a duty on the state to protect individuals from

third parties, there are two exceptions to this rule that apply in this case: (1) when a special

relationship exists between the plaintiff and state and (2) when the state affirmatively places the

plaintiff in danger by acting with deliberate indifference to a known or obvious danger. ECF 66

at 5–6 (citing Patel v. Kent Sch. Dist., 648 F.3d 965 (9th Cir. 2011)). Plaintiff argues that PPS is

in a special relationship with Plaintiff based on the “in loco parentis” doctrine, id. at 6, and that

the environment on the bus constituted a state-created danger, id. at 8.

1. Special Relationship

The special relationship exception applies when a state “takes a person into its custody

and holds him there against his will.” Patel, 648 F.3d at 972 (quoting DeShaney v. Winnebago

Cnty. Dept. of Soc. Servs., 489 U.S. 189, 199–200 (1989)). The types of custody that trigger the

special relationship exception are “incarceration, institutionalization, or other similar restraint of

personal liberty.” Id. (citation omitted). “When a person is placed in these types of custody,

[courts] allow due process claims against the state for a fairly simple reason: a state cannot

restrain a person’s liberty without also assuming some responsibility for the person’s safety and

well-being.” Id. (citation omitted). The exception does not apply in cases where a person is not in

state custody. Id.

School personnel do act in a surrogate parent role, or in loco parentis, to protect children

who attend their school. Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986).

However, the Ninth Circuit has explained that “combining in loco parentis duties with

compulsory school attendance still does not create a ‘special relationship.’” Patel, 648 F.3d at

973 (citations omitted). In fact, in Patel, the Ninth Circuit held that a disabled minor child with

mandatory school attendance and a tailored educational program is not in “custody” at school. Id.

(“Compulsory school attendance and in loco parentis status do not create ‘custody’ . . . In the

case of a minor child, custody does not exist until the state has so restrained the child’s liberty

that the parents cannot care for the child’s basic needs . . . A tailored educational program for a

disabled student does not meet this threshold.” (citations omitted)).

Plaintiff argues that he was in a special relationship with PPS based on the in loco

parentis doctrine such that that PPS had a duty and responsibility to keep him safe from harm on

the bus. ECF 66 at 7. However, Plaintiff cites no controlling legal authority for this argument.

The cases cited by Plaintiff consider state law negligence claims—not Fourteenth Amendment

claims. Id. at 6–7 (citing Fazzolari By & Through Fazzolari v. Portland Sch. Dist. No. 1J, 303

Or. 1, 20 (1987); Shin v. Sunriver Preparatory Sch., Inc., 199 Or. App. 352, 365–66 (2005);

Conway v. Pacific University, 324 Or. 231, 239–40, (1996)); see also id. at 6 (citing Pangle v.

Bend-Lapine Sch. Dist., 169 Or. App. 376, 395 (2000) (considering whether a special

relationship existed for a First Amendment claim)). Moreover, the Ninth Circuit in Patel

expressly rejected the special relationship argument that Plaintiff now makes. Plaintiff, a

disabled child with a tailored educational program, was not in state custody under the Fourteenth

Amendment at PPS. Accordingly, PPS did not have a duty to protect Plaintiff from Grappone

based on the special relationship exception.

2. State-Created Danger

Plaintiff also argues that PPS had a duty to protect Plaintiff from Grappone based on the

state-created danger exception. In order to state a claim for state-created danger, a plaintiff must

allege the following: (1) “affirmative conduct on the part of the state in placing the plaintiff in

danger,” and (2) “deliberate indifference” on the part of the state with respect to “known or

obvious danger.” Patel, 648 F.3d at 974 (quoting Munger v. City of Glasgow Police Dept., 227

F.3d 1082, 1086 (9th Cir. 2000) and L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). The

Ninth Circuit has explained that “the standard [for state-created danger] is even higher than gross

negligence.” Id. Deliberate indifference for the state-created danger exception “requires a

culpable mental state” where “the defendant knows that something is going to happen but

ignores the risk and exposes [the plaintiff] to it.” Id. (alteration in original) (citation omitted).

This Court finds that Plaintiff has failed to allege sufficient facts under the state-created

danger exception. Plaintiff does not allege the PPS took affirmative steps to place Plaintiff in

danger. Indeed, Plaintiff expressly states that PPS failed to “prevent” the unsafe conditions that

allegedly caused Plaintiff’s constitutional deprivation. ECF 57 at ¶¶ 147, 149. Moreover,

Plaintiff has failed to allege facts that amount to a standard higher than gross negligence on the

part of PPS. As this Court has explained, Plaintiff does not allege that any PPS staff knew about

any incidents involving Grappone prior to the October 4, 2016 incident. Plaintiff has therefore

failed to allege that PPS knew something was going to happen, but nonetheless exposed Plaintiff

to the risk. PPS did not have a duty to protect Plaintiff from Grappone based on the state-created

danger exception. Accordingly, PPS Defendants’ Motion to Dismiss as to Plaintiff’s Monell

claim for deliberate indifference against PPS is GRANTED with prejudice.

C. Claim 1.1: Excessive Force Claim (Monell) Against Defendant PPS

Finally, Plaintiff alleges that PPS has a “policy, practice, and/or custom of excusing,

condoning, and concealing the unlawful use of unnecessary and/or excessive force against

children, particularly children of color and/or children with disabilities.” ECF 57 at ¶ 108.

Plaintiff also claims that PPS “failed to act and failed to put in place policies” that would have

protected Plaintiff from harm. Id. As with the deliberate indifference claims, Plaintiff alleges that

through the actions and omissions of Kosmala and LaFramboise, PPS had “actual knowledge or

reason to know that the student interactions on [the bus] were unsafe, and that Grappone had

reacted to [Plaintiff’s] behavior with excessive force on at least one occasion, following several

previous improper holds and restraints against [Plaintiff].”4 Id. at ¶ 106. PPS Defendants again

argue that the Second Amendment Complaint “does not allege that any custom, policy, or

practice of PPS’s resulted in a deprivation of [P]laintiff’s constitutional rights.” ECF 62 at 7.

Plaintiff’s Monell claim based on excessive force fails for the same reason as Plaintiff’s

Monell claim for deliberate indifference. Plaintiff has not sufficiently alleged the existence of a

policy, practice, or custom. Plaintiff alleges that he is “aware” of only one incident of excessive

force—the October 4, 2016 incident in question. ECF 57 at ¶ 15. Plaintiff references only one

additional incident that may have occurred in September 2016 where Grappone allegedly

employed an improper hold on Plaintiff. Id. at ¶¶ 74–75. However, this Court finds that one prior

incident involving Grappone is not enough to establish that PPS had a policy, custom, or practice

of exposing Plaintiff to excessive force on the part of Grappone. See Gant, 772 F.3d at 618;

Trevino, 99 F.3d at 918. Furthermore, as repeatedly addressed above, Plaintiff fails to allege that

any PPS personnel were aware of the alleged excessive force on the part of Grappone. This

Court finds that Plaintiff has failed to allege an official policy, practice, or custom of excusing,

condoning, and concealing the allegedly unlawful use of excessive force by Grappone against

Plaintiff. Accordingly, PPS Defendants’ Motion to Dismiss as to Plaintiff’s Monell claim for

excessive force against PPS is GRANTED with prejudice.

CONCLUSION

This Court GRANTS PPS Defendants’ Motion to Dismiss Plaintiff’s Second Amended

4 As this Court noted above, Plaintiff references only one additional incident involving

Grappone that occurred either on September 20, 2016 or on October 9, 2016, ECF 57 at ¶¶ 73–

75, and attempts to supplement the incidents by pleading that “upon information and belief,”

Grappone “likely was assaultive to [Plaintiff] on prior occasions,” id. at ¶ 15. Because the

relevant facts regarding Grappone’s alleged pattern of assault on Plaintiff would be known by

Plaintiff, Plaintiff may not plead these facts based on information and belief. Soo Park v.

Thompson, 851 F.3d 910, 928 (9th Cir. 2017).

Complaint, ECF 62, with prejudice as to all claims against Defendants PPS, Kosmala, and

LaFramboise. Accordingly, PPS Defendants are hereby DISMISSED from this action.

IT IS SO ORDERED.

DATED this 27th day of April, 2023.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge