that those procedures can provide no remedy for the condition-giving rise to his or her
claims. See Second Amendment Complaint Doc. No. 62, Pg. 12 line 27-28. Pg. 13. line 1
though Pg. 14, 1-28.Like in the Witte’s case Witte v. Clark County School District, 197 F.
3d. 1271 (9th1999), all parties agreed to the new placement and for R.P.’s future
educational plans and services during informal administrative proceedings with the VUSD.
In other words, the Peters too used administrative procedures to secure the remedies
available under theI.D.E.A. before filing a Cal. Tort Claim.
Peters eschewed any claim for damages to provide, or be measured by any cost of remedial
services. The claim for damages is retrospective only.
Plaintiff Peters claims are centered on physical/verbal abuse and injury, as well as
discrimination, social ostracizing, retaliation and harassment. As theNinth Circuit ruled in
Witte v. Clark County School District 197 F.3d. 1271 (9th 1999)“I.D.E.A. remedies would
not appear to be well-suited to addressing past injuriesadequately, such injuries typically
are remedied through an award of monetary damages.”[See Exhibits No. 120, 121.]
Memorandum of Points and Authorities in opposition to Dismiss Defendants Board of
Trustees of GPACS et. al. to Plaintiff’s Amended Complaint Doc. No. 37, Pg. 4 line 16-27
through Pg. 10, line 2. “A trial court’s ruling sustaining a motion to dismiss is deemed
erroneous where the plaintiff has stated a cause of action under any possible legal theory.”
It must also be borne in mind that in making this determination, [a court] must construe
allegations of the complaint liberally.” Zuniga v. Housing Authority of the City of Los
Angeles (1995) 41 Cal App. 4th82, 92. Doc. No. 37,38 Pg. 23 line 1-26.
Peters’ son’s education was neither free nor appropriate as it is evident by the entire
pleadings, responses to Defendants motions and exhibits that Plaintiff has submitted to the
Southern District Court. Physical/verbal abuse, retaliatory practices,social ostracizing and
harassment marred the entire educational experience; it was certainly not the education
that Congress intended when it enacted the I.D.E.A. Plaintiff previously quoted, as it has
been clearly stated in Shore Regional High School Board of Education v. P.S. on behalf of P.
S, Opp. No. 03-3438 (3rdCir. 2004) by Circuit Judges Alito, Smith and
Dubois, “relentless physical and verbal harassment as well as social
isolation by classmates along with the schools inability to provide a safe
learning environment is a denial of FAPE.” In the Shore’s case the high school
district made some attempts to provide services for P.S but in the Peters case neither the
VUSD nor GPACS can provide any evidence that the administration or teachers made any
attempts to provide a free equaland appropriate education for R.P. Quite to the contrary
the administration and theteachers were involved in the abuse, harassment and retaliatory
practices themselves. AllDefendants knew and should have known that R.P’s life and
health were at stake and intervention depended on R.P. acquiring services, placements and
a safe learning environment but all of the Defendants actions were contrary to the law.
The years ofdeliberate indifference and delays caused Peters and her son years of
emotional and physical harm that cannot be repaired by remedial educational services. See
Second Amended Complaint Doc. No. 62, Pg.7, line 12-28. Pg. 8, line 1-12, 25-28. Pg. 9 line
1-through Pg. 17 Line 10.Finally, in Covington v. Knox County School System, 205 F.3d
912, 916 (6th Cir. 2000),the Sixth Circuit held that the plaintiff was not required to
exhaust administrative remediesbecause “the condition creating the damage has ceased,
and there is no equitable relief thatwould make [him] whole * * * the administrative
process would be incapable of impartingappropriate relief due to the nature of [Covington’
s] alleged injuries and the fact that he hasalready graduated.” Id. at 918. The IDEA’s
administrative exhaustion requirementsimply does not apply to this claim. The statute
provides: Nothing in this chapter shall beconstrued to restrict or limit the rights,
procedures, and remedies available under theConstitution, the Americans with Disabilities
Act of 1990, title V of the rehabilitation Actof 1973, or other Federal laws protecting the
rights of children with disabilities, exceptthat before the filing of a civil action under such
laws seeking relief that is also availableunder [the IDEA] the procedures under [the IDEA]
shall be exhausted * * *. 20 U.S.C. § 1415(l) (emphasis added).
27Peters allegations that the Defendants violated the I.D.E.A. has nothing to do with the
question whether there are adequate remedies for her injuries available under theI.D.E.A.
the appropriate test for determining whether exhaustion was required. TheI.D.E.A.’s
administrative exhaustion requirement applies only when the Plaintiff is“seeking relief
that is also available under [the IDEA]” (20 U.S.C. § 1415(l)), notwhenever he or she
alleges a violation of educational duties. Indeed, Defendants’proposed interpretation would
render meaningless the language in section 1415(l) thatcircumscribes the I.D.E.A.’s
administrative exhaustion requirement. Every defendantwho brings suit under the I.D.E.A.
presumably argues that someone has “violat[ed] dutiesthat arose under the I.D.E.A.”
Therefore, Defendants’ theory would require every personbringing an I.D.E.A. claim to
exhaust administrative procedures — eviscerating thelimiting language in 20 U.S.C. § 1415
(l). Because courts should “avoid rendering [wordsin statutes] meaningless, redundant, or
superfluous [and] avoid rendering statutoryprovisions ambiguous, extraneous, or
redundant” (In re Merchants Grain, 93 F.3d at1353-54). (Pamela Mc McCormick, Next
Friend of Eron McCormick v. Waukegan School District # 60; 374 F.3d 564; 2004 U.S. App.
LEXIS 13951; 11 Accom. DisabilitiesDec. (CCH) 11-131.6. The District Court Erred In
Requiring A Heighten Pleading To Assert A 42 U.S.C. § 1983 Claim Against State Officials
In Their Individual Capacity AsWell As Official Capacity; Claim For Relief Fourth, Fifth,
Sixth and Tenth.On the Fourth Claim the court relied on Hansen v. Black, 885 F.2d 642,
646, (9thCir.1989). The court states, “Plaintiff has not alleged that Defendants Hubbard,
Cowles,Hannaman, Kanawi, Hadjiahai, Halfaker, or any Does were personally involved
indepriving Peters of federal constitutional rights.” Yet Hansen 885 F.2d 642, 646, (9thCir.
1989) U.S. App. Lexus 13906 [*646] Clearly states, “On any theory of vicarious liability,See
Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 89 L. Ed. 2d 452, 106, S. Ct. 1292 (1986).
A supervisor may be liable if there exists either (1) his or her personal involvementin the
constitutional deprivation. Or (2) a sufficient casual connection between the
28supervisor’s wrongful conduct and the constitutional violation. Thompkins v. Belt 828 F.
2d 298, 303,-04 (5thCir. 1987) Supervisory liability exists even without overt
personalparticipation in the offensive act if supervisory officials implement a policy so
deficientthat the policy “itself is a repudiation of constitutional rights” and is “the moving
force ofthe constitutional violations.”Through out all of Plaintiff’s pleadings, responses to
Defendants motions to dismissher complaints, and exhibits she has declared that all
Defendants actions were contrary to the law and they all failed to draft, implement, and
enforce policies to protect the rights ofdisabled students and their parents. Further, that
all Defendants had been repeatedlywarned by the United States Department of Education
Office for Civil Rights “OCR” ofthe systemic and pervasive violations and the many
“complaints” filed by Plaintiff andother parents and by the California Department of
Education “CDE”. Defendant (s) failed to train, supervise and communicate anti-
discrimination, anti-retaliation and anti-harassment, anti-bulling policies to the
administration, teachers, staff and students undertheir supervision. Plaintiff continually
declared that Defendants were deliberatelyindifferent and turned a deaf ear to her
complaints and that all Defendants owed a fiduciaryduty and responsibility to protect the
rights of her son. As her son was an identifiablevictim due to his disabilities, all of
Defendants knew that her son was severely depressed and suicidal due to the years of
bulling, physical and verbal harassment, and ostracizing byother students, teachers and
administrators while in their care.All Defendants knew that other disabled students in
their care had attempted suicidedue to the physical and verbal abuse they suffered and had
to endure at both VUSD and GPACS campuses, yet all Defendants failed to draft the
policies and prohibition necessaryto protect the rights of disabled students in their care and
turned a deaf ear to Peterscomplaints. Plaintiff repeatedly declared that all Defendants
owed a fiduciary duty andresponsibility to protect the health and safety of her son while he
was in their care.Nevertheless, Defendants resorted to retaliatory practices to silence
Plaintiff and set her asan example of what would happened to parents and their children
who resorted to filing
29Uniform Complaints with OCR against them. See Plaintiff’s Second and Third Amended
Complaints and Second and Third responses to Defendants motions to have her
complaintdismissed.The Court again relied on E.g. Schwartz v. Snhomish County, Case No.
C05-7538P,Slip op. 2006 WL 692024 (W.D. Wash. Mar. 17,2006) in support of Hansen 885 F.
2d 642,646 heightens pleading but E.g. Schwartz [*11]. However, Section [b]. under
[IndividualCapacity Claims] “the Ninth Circuit Court has noted that “[s]upervisory
liability existseven without overt personal participation in the offensive act if supervisory
officialsimplement a policy so deficient that the policy ‘itself is a repudiations of
constitutionalrights’ and the moving force is a constitutional violation.”’ Hansen 885 F.2d
646. TheNinth Circuit Court has also noted that “[a] supervisor can be liable under § 1983
if he ‘set[s] in motion a series of acts by others, which he knew or reasonably should have
known,would cause others to inflict the constitutional injury,”’ Motley v. Parks, 432 F. 3d
1072,1081 (9thcir. 2005) *12 Supervisory liability is imposed against a supervisory official
inhis individual capacity for his “own culpable actions or inaction in the training,
supervision, or control of this subordinates,” for his ‘aquisce[nce] in the
constitutionaldeprivation of which [the] complaint is made,” for the conduct that showed a
“ ‘reckless orcallous indifference to the rights of others.”’ E.g. Schwartz v. Snhomish
County, Case No.C05-7538P, Slip op. 2006 WL 692024 (W.D. Wash. Mar. 17,2006). Larez v.
City of LosAngeles, 946 F.2d 630, 646 (9thCir. 1991). As such, a supervisor may in
somecircumstances be subjected to suit in his or her individual capacity under Section 1983.
As to the heighten pleading requirement on any other motion to dismiss under rule 12 (b),
the court may consider matters outside the pleadings, but must accept as true all
materialallegations of the complaint and construe the complaint in favor of the plaintiff.
See Fed.[**10] R. Civ. P. 12; Warth v. Seldin, 422 U.S. 490. 501-02, 45 L. Ed. Ed 343, 95 S.
Ct.2197 (1975) 397 F. Supp. 200, * ; 1975 U.S. Dist. Lexis 11611,** In Conley v. Gibson,355
U.S. 41, 47, 2 L. Ed. 2d 80,78 S. Ct. 99 (1957); Fed. R. Civ. P. 8 (a) (2).
30Moreover, the Supreme Court has specifically ruled that “a federal court may not applya
heighten pleading standard to a complaint alleging municipal liability under 42 U.S.C. §
1983,” Branch v. Tunnell, 14 F. 3d 449, 450 (9thCir. 1994) (citing Leatherman, 507, U.S.at
168). n6. Mary Sanders Lee et. al v. City of Los Angles; A. Haddock No. 98-55807 –250 F
3d 668; 2001 U.S. App. Lexus 8150; 56 Fed. R. Evid. Serv. (Callagham) 698; 2001 Cal. Daily
Op. Service 3507; 2001 Daily Journal DAR 4351. Under B. Notice of PleadingStandard
[HN3] “Our review of the district court’s orders dismissing plaintiff’s federalclaims with
prejudice is governed by the federal rules system of notice pleading under Fed.R. Civ. 8
(a). Rule 8 (a) (2) states that a “pleading which sets forth a claim for relief ...
shallcontain…a short and plain statement of the claim showing that the pleader is entitled
torelief.” Fed. R. Civ. 8 (a) Rule 8 (a).The Supreme Court has stated “ the rule means
what it says,” Leatherman v. TarrantCounty Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168, 122 L. Ed 2d 517,113 S. Ct. 1160 (1993).  As the explained [HN4]
[Under] the liberal system of “noticepleading” set up by the Federal Rules [,] Rule 8 (a) (2)
… does not require a claimant to setout in detail the facts upon which he bases his claim.
To the contrary, all the Rules requiresis a “short and plain statement of the claim” that
will give the defendant fair notice of whatthe Plaitiff’s claim is and the ground upon which
it rests. The issue of "heightened pleadingstandards” in Leatherman v. Tarrant County
NICU, 507 U.S. 163 (1993) in a 42 U.S.C. § 1983 suit Petitioner Homeowners alleged that
the conduct of the local police officers insearching their home violated their Fourth
Amendment. The homeowners claimed that thebasis for municipal liability was the failure
to adequately train the police officers involved.The federal court dismissed their complaint
because they failed to meet the “heightenpleading standard” adopted by the Court of
Appeals, which required that complaints againstmunicipal corporations in § 1983 cases
state with factual detail and particularity the basisfor the claim. “First, the heightened
standard cannot be justified on the ground that a morerelaxed pleading standard would
eviscerate municipalities' immunity from suit by subjectingthem to expensive and time-
consuming discovery in every 1983 case.” Municipalities,
31although free from respondent superior liability under 1983, see Monell v. New York
CityDept. of Social Services, 436 U.S. 658 , do not enjoy absolute or qualified immunity
from1983 suits, id., at 701; Owen v. City of Independence, 445 U.S. 622, 650 . Second, it is
notpossible to square the heightened standard applied in this case with the liberal system
of"notice pleading" set up by the Federal Rules. Rule 8(a)(2) requires that a complaint
includeonly "a short and plain statement of the claim showing that the pleader is entitled
to relief."And while Rule 9(b) requires greater particularity in pleading certain actions, it
does notinclude among the enumerated actions any reference to complaints alleging
municipalliability under 1983. Pp. 165-169. 954 F.2d 1054.”The Southern District Court
Placed Peters in this impossible situation described by theSupreme Court in Leatherman.
The Court stated that, “the Amended Complaint does notcontain “short and plain
statement of the claim [s]” as required by the Rule 8 (a) of theFederal Rues of Civil
Procedures.” Doc. No. 58 Page 2 line 1-5. and “that the claims arelong and rambling.” See
Doc 58 Pg. 3 line 1-9. The Court dismissed Plaintiff’s Amended Complaint [24-1] w/o
prejudice and with leave to amend w/30 days. The Court ordered Plaintiff to submit a
Second Amended Complaint that complies with Rule 8 (a) See Doc 58 Pg. 3 line 23-28.
When Plaintiff filed a complaint in compliance with the Court’s order ofa “short and plain
statement of the claim [s]” as required by the Rule 8 (a) her complaintwas dismissed. See
Doc. 112-1 Pg. 9 Line 22-28. Plaintiff repeated in her Complaints,responses to dismiss her
complaints by Defendants and over 191 Exhibits in supportingdocuments, she included with
her pleadings enough evidence to support her allegationsnecessary to overcome
Defendants Eight motions to dismiss her Complaints. Defendantsfor both VUSD and
GPACS never disputed, questioned or contested the authenticity of thedocuments or facts,
Plaintiff presented to the court therefore, the court should have considered the document
and exhibits in submission by the Plaintiff.Generally, a district court may not consider any
material beyond the pleadings in rulingon a Rule 12(b)(6) motion. Hal Roach Studios, Inc.
v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Material, which is
properly submitted as part of the
32complaint may, however, be considered. Id. In addition, documents specifically referred
to in a complaint, though not physically attached to the pleading, may be considered where
authenticity is unquestioned. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Finally,
the Court may take judicial notice of matters of public record. Mack v. South Bay Bee
rDistributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Holden v. Hagopian, 978 F.2d 1115,
1121 (9th Cir. 1992). In analyzing a motion to dismiss, the Court must accept as trueall
material allegations in the complaint and construe them in the light most favorable to the
nonmoving party. NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).Because
Defendants never questioned the authenticity of the documents Plaintiff submitted to the
Court, the documents should have been considered in the motions to have her Complaints
dismissed by the Southern District Court. The Supreme Court went on to say,the stated
basis for municipal liability under Monell v. New York City Dept. of Social Services, 436 U.
S. 658 (1978), was the failure of these bodies to adequately train the police officers
involved. See Canton v. Harris, 489 U.S. 378 (1989).The Supreme Court granted Certiorari
to resolve a conflict among the Courts of Appeals concerning the applicability of a
heightened pleading standard to 1983 actions alleging municipal liability. Cf., e.g., Karim-
Panahi v. Los Angeles Police Dept., 839 F.2d 621,624 (CA9 1988) ("[A] claim of municipal
liability under section 1983 is sufficient to withstand a motion to dismiss even if the claim
is based on nothing more than a bare allegation that the individual officers' conduct
conformed to official policy, custom, orpractice") (internal quotation marks omitted).As to
Plaintiff’s Peters allegations of Defendants ‘failure to comply with the direct orders of the
State by refusing to assess, provide placement, and an educational contract.See Doc No.
112-1 pg. 10, line 1-28. Pg. 11, line 1-10. Plaintiff declared in her Complaintas well as in
her supporting document and Exhibits recounting the years of harassment,verbal and
physical abuse by students and teachers of both GPACS and VUSD against herson. See Fist
Amended Complaint Doc. 24, Pg. 20 line 1-26. Pg. 21, line 1-27. Pg. 22,line 1-28. During
this crucial period of time around March 5, or 6, 2002 whereby
33Defendants had a last opportunity to put a stop to the bulling, physical and
verbalharassment by both GPACS teachers and students. Last opportunity to provide a
safelearning environment, to redirect course of action, and to provide the Special
EducationServices her son desperately needed. All Defendants deliberately choose to turn
a blind eye to the abuse of R.P., to defy the direct orders of the CDE.In addition they
continued to harass R.P. even when he was no longer at the VUSD orGPACS campuses
because Plaintiff was pursuing R.P. special education services and had filed a formal Out of
Compliance Complaints with CDE. See Fist Amended ComplaintDoc. 24, Pg. 22 line 11-22.
Special Education Director John Hannaman was directlyordered by CDE to provide special
education services for R.P. whether he appealed CDE’sdecision or not. VUSD believed that
since R.P. was a student at GPACS, VUSD did nothave a fiduciary duty and responsibility
to provide special education services for GPACSstudents. GPACS believe that they did not
have to provide special education and related services to disabled students because they
were a “charter school” claming that if in factstudents required special education they
should attend “public” schools. Therefore bothVUSD Special Education Director Hannanan
and GPACS administration defied CDEdirect orders and refused to provide R.P. any special
education services as an effect of allDefendants deliberate indifference R.P.s well-being
spiraled downward and resulted inirreparable harm. Consequently, VUSD sanctioned,
granted, extended, and proudlyendorsed the charter contract for about 10 years. Even
though VUSD and GPACS entireBoards knew that the contract did not have a
Memorandum of Understanding “MOU”between the charter and the chartering district to
accommodate and provide specialeducation and related services for disabled students as
required by law. 20 U.S.C. § 1412 (3) (A) See Fist Amended Complaint Doc. 24, Pg. 23 line
6-11. MOU was not drafteduntil Peters filed Complaints and a California Tort Claim
against VUSD and GPACS. Foralmost 10 years both GPACS and VUSD systemically
discriminated and retaliated againstparents and disabled students who complained. GPACS
and VUSD deprived specialeducation students of admission, special education and related
services at the GPACS campus.
See Memo of p/a in opposition by Plaintiff to dismiss dfts VUSD et. al. Doc. 10,Pg. 3.4. line
23-26, 1-26 Pg. 5, 1-8.
|Peters versus Guajome Park Academy, et al
|Alito, Smith and Dubois:
learning environment is a denial of
FAPE."learning environment is a denial of