# Walker v. Portland Public School No. 1J

> District Court, D. Oregon · April 27, 2023

URL: https://www.frixlaw.com/law-library/cases/10395908

## Case

- **Court:** District Court, D. Oregon
- **Decided:** April 27, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10395908

## How later opinions describe it (automated extraction)

- concluding that supervisors cannot be held liable for the constitutional violations of persons beyond their control or solely by virtue of their office
- 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
- holding that supervisory liability may be imposed when an official “knew of unconstitutional conditions and culpable actions of his subordinates but failed to act”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10395908. Public record. Not legal advice.