This is the html version of the file http://www.websupp.org/data/SDCA/3:04-cv-01259-112-SDCA.pdf.
Google automatically generates html versions of documents as we crawl the web.
Peters, et al v. Guajome Park, et al
Page 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 1 -
04cv1259
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Silvia Peters,
Plaintiff,
CASE NO. 04cv1259-BEN (POR)
ORDER GRANTING
DEFENDANTS’ MOTIONS TO
DISMISS
[Dkt. Nos. 77, 83, 97, and 101]
vs.
Guajome Park Academy Charter School, et
al.,
Defendants.
I. INTRODUCTION
Now before the Court are Defendants’ Motions to Dismiss [Dkt. No. 77, 83, 97, and 101].
The motions are presented by three groups of Defendants: (a) the Vista Unified School District
(“VUSD”), David Hubbard, Dave Cowles, and John Hannaman; (b) the Guajome Park Academy
Charter School (“GPACS”), Stephen Halfaker, Beverly Kanawi, and Mike Hadjiaghai; and (c) the
Board of Trustees of Guajome Park Academy and Guajome Park Academy Charter School.
Peters’ first Complaint was dismissed because she was seeking relief for her minor son as
next friend and guardian but without a licensed attorney to represent her son’s interests. See Order
dated October 29, 2004. In arguing against dismissal, Peters argued that apart from her son’s
rights to seek relief under the IDEA, a parent may urge her own IDEA rights pro se. The First
Amended Complaint, like the initial Complaint, told a complicated story about the special
education needs of Peters’ son, the alleged mal-treatment of Peters’ son from employees and
students in the Defendant Vista Unified School District and the Defendant charter school Guajome
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 1 of 18

Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 2 -
04cv1259
Park Academy, and Peters’ efforts to obtain a better educational experience for her son. There
were nine claims for relief: (1) a due process claim; (2) and equal protection claim; (3) a §504 of
the Rehabilitation Act claim; (4) an Americans with Disabilities Act claim; (5) a Title VI of the
Civil Rights Act of 1964 claim; (6) a Title IX of the Education Amendment of 1972 claim; (7) a
violation of California Government Code §1090 claim; (8) a First Amendment claim; and (9) a
civil Racketeering Influenced Corrupt Organizations Act claim. At various points, Peters appeared
to be asserting her own rights, at other points, it appeared she was still asserting the rights of her
minor son (which she may not do pro se).
The First Amended Complaint was dismissed and with leave of Court, Peters filed a
Second Amended Complaint. Plaintiff’s Second Amended Complaint (“SAC”) was 27 pages and
94 paragraphs long. In her SAC, Plaintiff again set out the same nine separate claims for relief
each based upon 42 U.S.C. § 1983. Defendants again moved to dismiss and the school districts
and school officials sued in their official capacity were dismissed based upon the Eleventh
Amendment immunity. Plaintiff was again granted leave to amend her Complaint and has now
filed a Third Amended Complaint.
Peters’ Third Amended Complaint is 25 pages and 116 paragraphs long. In this iteration
she sues the Defendants in both their official and individual capacities and she asserts twelve
claims for relief. In some cases she seeks money damages and in others she seeks injunctive relief.
The Defendants seek to dismiss either on grounds of Eleventh Amendment immunity, a failure to
exhaust administrative remedies under the IDEA, the failure to state a claim for relief, or the
failure to properly serve certain Defendants with summons. The interplay between the various
claims and the different forms of relief, sought against Defendants in both official and individual
capacities, and the contours of Eleventh Amendment immunity, creates a complex matrix of
potential claims and immunities. Consequently, the claims are addressed one at a time.
II. MOTIONS TO DISMISS
Attacks on jurisdiction under Rule 12(b)(1) can be either facial, confining the inquiry to
allegations in the Complaint, or factual, permitting a court to look beyond the Complaint.
Polanski v. KLM Royal Dutch Airlines, 378 F.Supp.2d 1222, 1228 (S.D. Cal. 2005). For facial
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 2 of 18

Page 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 3 -
04cv1259
attacks, the allegations in the Complaint are taken as true. Id. When the motion challenges the
jurisdictional facts presented in the Complaint the court may consider evidence properly before it,
and the party opposing the motion has the burden of establishing subject matter jurisdiction. Id.
A facial attack on jurisdiction under Rule 12 (b)(1) is similar to a motion to dismiss under
Rule 12(b)(6). In both cases review is limited to the contents of the Complaint. Lee v. City of Los
Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“[W] hen the legal sufficiency of a complaint’s
allegations is tested by a motion under Rule 12(b)(6), review is limited to the complaint.”). The
Court is required to presume all factual allegations of the Complaint to be true and draw all
reasonable inferences in favor of the non-moving party. Knevelbaard Dairies v. Kraft Foods, Inc.,
232 F.3d 979, 984 (9th Cir. 2000).
A Rule 12(b)(6) motion tests the legal sufficiency of a claim. Navarro v. Block, 250 F.3d
729, 732 (9th Cir. 2001); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6)
authorizes a court to dismiss a claim on the basis of dispositive issue of law.”). “A claim may be
dismissed only if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.’” Id. (citations omitted). At the same time, a court is
not to assume that a plaintiff can prove facts it has not alleged or that defendants have violated
laws in ways that have not been alleged. Associated General California, Inc. v. California State
Council of Carpenters, 459 U.S. 519, 526 (1983).
III. ELEVENTH AMENDMENT IMMUNITY
The VUSD Defendants and the GPACS Defendants move to dismiss all of Plaintiff’s
claims brought under §1983 on the basis of Eleventh Amendment immunity.
The Eleventh Amendment provides: “The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The
decisions of the United States Supreme Court have extended the Amendment's applicability to
suits by citizens against their own States. Board of Trustees of University of Alabama v. Garrett,
531 U.S. 356, 363 (2001). “The ultimate guarantee of the Eleventh Amendment is that
nonconsenting States may not be sued by private individuals in federal court.” Id.
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 3 of 18

Page 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 4 -
04cv1259
This immunity from suit enjoyed by the States affects all of Plaintiff’s claims against the
two public school systems in her Third Amended Complaint. This is because public schools and
school officials sued in their official capacity are considered part of the State of California.
Berlanger v. Madera Unified School Dist., 963 F.2d 248 (9
th
Cir. 1992). Thus, VUSD and its
school officials are considered part of the State. Likewise, GPACS and its school officials, though
a charter school, is part of the California public school system and part of the State. Ridgecrest
Charter School v. Sierra Sands Unified, 130 Cal.App.4th 986, 998 (Cal.App. 2005) (“In 1998, the
Legislature, as part of AB 544, added section 47615 to the Act to find and declare that charter
schools are a part of the ‘Public School System, as defined in Article IX of the California
Constitution’; that they come under the system's jurisdiction; and that they are entitled to ‘full and
fair funding’ under the Act.”); Wilson v. State Board of Education, 75 Cal.App. 4
th
1125, 1137
(Cal. App. 1999) (“[I]t is apparent that charter schools are part of California’s single, statewide
public school system.”).
All twelve of Plaintiff’s claims for relief are brought through 42 U.S.C. §1983. Eleventh
Amendment immunity has not been abrogated for §1983 claims. Carmen v. San Francisco
Unified School Dist., 982 F.Supp. 1396, 1403 (N.D. Cal. 1997) (dismissing §1983 claim against
California school district and district’s officials). As the court in Carmen recognized, while §1983
provides a federal forum to assert a deprivation of a civil liberty, it does not provide that forum for
a citizen who seeks a remedy against a State. Id. (quoting Will v. Michigan Dep’t of State Police,
491 U.S. 58, 71 (1989)). Neither a State nor its officials acting in their official capacities are
“persons” who can be sued in federal court under §1983. Id. However, there are two recognized
exceptions which could provide grounds for federal court jurisdiction. The two exceptions are for
suits seeking only prospective injunctive relief and individual capacity suits.
IV. EACH OF THE TWELVE CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
The first claim for relief is brought against the individual Defendants in their official
capacities. Because the individual Defendants are school officials being sued in their official
capacities, it is the same as a suit directly against the State of California and the Eleventh
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 4 of 18

Page 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
A suit seeking declaratory relief, without more, does not provide a basis for federal court
jurisdiction and a court has discretion to decline consideration of a declaratory relief request. This
Court so declines.
2
On her second claim for relief, Plaintiff seeks an injunction requiring, inter alia, Defendants
to adopt and implement training classes and adopt policies to ensure that Guajome Park Academy
complies with federal laws and complies with state laws regarding conflicts of interest.
- 5 -
04cv1259
Amendment would ordinarily deprive this Court of jurisdiction to hear the claim. Berlanger v.
Madera Unified School Dist., 963 F.2d 248 (9
th
Cir. 1992). However, Peters seeks only
declaratory
1
and injunctive relief (in the form of an order to Defendants to take training courses on
disability discrimination and “violations of a FAPE”), not money damages. Therefore, the
Eleventh Amendment does not prevent the claim. Will v. Michigan Dep’t of State Police, 491 U.S.
58, 66 (1989).
However, while the Defendants are not immune from suit on this claim, the claim must be
dismissed because of a failure to exhaust available administrative remedies under the IDEA. The
crux of the first claim for relief is that the Defendants have denied Plaintiff and her son a free and
appropriate education by failing to provide special education and related services. This type of
claim must first be pursued through the educational administrative process. Blanchard v. Morton
School District, 420 F.3d 918, 920-21 (9
th
Cir. 2005); Robb v. Bethel School District #403, 308
F.3d 1047 (9
th
Cir. 2002) (requiring dismissal of a complaint where the plaintiff has not exhausted
her administrative remedies under the IDEA).
The first claim is dismissed without prejudice.
SECOND CLAIM FOR RELIEF
The second claim for relief is also brought against the individual Defendants in their
official capacities. Because the individual Defendants are school officials being sued in their
official capacities, it is the same as a suit directly against the State of California and the Eleventh
Amendment would ordinarily deprive this Court of jurisdiction to hear the claim. Berlanger, 963
F.2d 248. However, Peters seeks only declaratory and injunctive relief,
2
not money damages.
Therefore, the Eleventh Amendment does not prevent the claim. Michigan Dep’t of State Police,
491 U.S. at 66.
However, while the Defendants are not immune from suit on this claim, the claim must be
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 5 of 18

Page 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
For her third claim for relief, as for her second claim, Plaintiff seeks an injunction requiring,
inter alia, Defendants to adopt and implement training classes and adopt policies to ensure that
Guajome Park Academy complies with federal laws and complies with state laws regarding conflicts
of interest.
- 6 -
04cv1259
dismissed because of a failure to exhaust available administrative remedies under the IDEA. The
crux of the second claim for relief is that the Defendants have denied Plaintiff and her son a free
and appropriate education by failing to provide a safe learning environment. This type of claim
must first be pursued through the educational administrative process. Blanchard, 420 F.3d at 920-
21; Robb, 308 F.3d 1047 (requiring dismissal of a complaint where the plaintiff has not exhausted
her administrative remedies under the IDEA).
The second claim is dismissed without prejudice.
THIRD CLAIM FOR RELIEF
The third claim for relief is also brought against the individual Defendants in their official
capacities. Because the individual Defendants are school officials being sued in their official
capacities, it is the same as a suit directly against the State of California and the Eleventh
Amendment would ordinarily deprive this Court of jurisdiction to hear the claim. Berlanger, 963
F.2d 248. However, Peters seeks only declaratory and injunctive relief,
3
not money damages.
Therefore, the Eleventh Amendment does not prevent the claim. Michigan Dep’t of State Police,
491 U.S. 58 at 66.
However, while the Defendants are not immune from suit on this claim, the claim must be
dismissed because of a failure to exhaust available administrative remedies under the IDEA. The
crux of the third claim for relief is that the Defendants have denied Plaintiff and her son a free and
appropriate education by “...failing to comply with the VRP [voluntary resolution plan] agreement
failing to establish a safe learning environment, by failing to adopt policies, procedures, practices,
staff, student, administration and teacher training.” This type of claim must first be pursued
through the educational administrative process. Blanchard, 420 F.3d at 920-21; Robb, 308 F.3d
1047 (requiring dismissal of a complaint where the plaintiff has not exhausted her administrative
remedies under the IDEA).
The third claim is dismissed without prejudice.
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 6 of 18

Page 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 7 -
04cv1259
FOURTH CLAIM FOR RELIEF
The fourth claim for relief is brought against the individual Defendants in their individual
capacities and seeks compensatory and punitive damages. Because the individual Defendants are
school officials being sued under 42 U.S.C. §1983 in their individual capacities, the Eleventh
Amendment does not prevent the claim. Price v. Akaka,928 F.2d 824, 828 (9
th
Cir. 1991), cert.
denied, 502 U.S. 967 (1991) (as amended on denial of r’hng and r’hng en banc).
However, the claim for relief is too vague and fails to adequately allege a causal
connection between the conduct of each individual Defendant and an alleged violation of
Plaintiff’s federal constitutional rights. Plaintiff has not alleged that Defendants Hubbard, Cowles,
Hannaman, Kanawi, Hadjiaghai, Halfaker, or any Does were personally involved in depriving
Peters of federal constitutional rights. That much is necessary to allege a § 1983 claim against
individuals acting in their individual capacity. Jeffers v. Gomez, 267 F.3d 895, 915 (9
th
Cir. 2001);
Hansen v. Black, 885 F.2d 642, 646 (9
th
Cir. 1989).
Instead, Peters alleges generally that “...the Individual Defendants (in their individual
capacity), and each of them, in refusing and failing to comply with the Direct Orders Relief from
CDE [California Department of Education], Plaintiff and her son were denied the benefits of
FAPE to which they were entitled under the IDEA.” The facts section of the Third Amended
Complaint does not supply the necessary allegations of causation. The only reference to an action
by the California Department of Education is found in paragraphs 37 to 40. There, Peters
describes a finding by the State Superintendent of Public Education. According to the Complaint,
Vista Unified School District and Guajome Park Academy was to provide some sort of
“assessment, placement, and an educational contract.” The Complaint alleges that Defendant
Hannaman appealed the decision and the appeal was denied. Finally, the Complaint then simply
alleges that the Vista Unified School District “did not provide the placement in compliance with
the direct orders of the state of California.” These allegations lack the necessary specificity to
state a §1983 claim for relief against state officials in their individual capacity. First, the denied
federal constitutional right is not identified. The Supreme Court has held that there is no federal
constitutional right to a free public education. San Antonio Independent School Dist. v. Rodriguez,
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 7 of 18

Page 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 8 -
04cv1259
411 U.S. 1 (1973). Second, the individual Defendant causing the denial of the federal
constitutional right is not identified. Third, the causal connection between the individual
Defendant’s wrongful conduct and the alleged constitutional violation is not described. Such
general allegations simply do not state a claim against any of the individual Defendants in the
individual capacities under §1983. E.g. Schwartz v. Snohomish County, Case No. C05-732P, slip
op., 2006 WL 692024 (W.D. Wash. Mar. 17, 2006) (general allegations which do not adequately
set forth causal connection between actions of individuals sued in their individual capacity and the
alleged constitutional violations are subject to dismissal).
Moreover, this type of claim is at its core a claim that a statutory right to a free and
appropriate education has been denied and must first be pursued through the educational
administrative process. Blanchard, 420 F.3d at 920-21; Robb, 308 F.3d 1047 (requiring dismissal
of a complaint where the plaintiff has not exhausted her administrative remedies under the IDEA).
The fourth claim is dismissed without prejudice.
FIFTH CLAIM FOR RELIEF
The fifth claim for relief is also brought against the individual Defendants in their
individual capacities and also seeks compensatory and punitive damages. Because the individual
Defendants are school officials being sued under 42 U.S.C. §1983 in their individual capacities,
the Eleventh Amendment does not bar the claim. Price v. Akaka,928 F.2d at 828.
However, this claim for relief is also vague and fails to specifically allege a causal
connection between the conduct of each individual Defendant and an alleged violation of
Plaintiff’s federal constitutional rights. Plaintiff has not alleged that Defendants Hubbard, Cowles,
Hannaman, Kanawi, Hadjiaghai, Halfaker, or any Does were personally involved in depriving
Peters of federal constitutional rights. That much is necessary to allege a § 1983 claim against
individuals acting in their individual capacity. Jeffers, 267 F.3d at 915; Hansen, 885 F.2d at 646.
Peters alleges generally that “as a result of the action or inaction of the Individual
Defendants (in their individual capacity), and each of them, in refusing and failing to provide her
son a FAPE...by refusing and failing to provide a safe learning environment, by failing to adopt
policies, procedures, and practices, Plaintiff and her son were denied the benefits of FAPE to
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 8 of 18

Page 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 9 -
04cv1259
which he was entitled to under the IDEA.” The facts section of the Third Amended Complaint
however, suggests potential supervisory liability. Paragraph 19 alleges that the Defendants “knew
specifically that Plaintiff’s son was subjected to racial and disability discrimination, taunts, name-
calling, physical assaults and even death threats.” The Complaint goes on to allege that “Plaintiff
and her son repeatedly reported incidents of verbal and physical harassment to all of the
Defendants, but their complaints fell on deaf ears.” Again in paragraph 21, Plaintiff alleges that
“harassment and physical assaults against Plaintiff’s son continued.” In paragraph 22, Plaintiff
alleges that “her son continued to experience retaliatory harassment by teachers that were
instructed by the administration of GPACS.” In paragraph 23, Plaintiff alleges that “her son
continued to receive...physical assaults, death threats, and rocks thrown at the back of his head,
mouth and the back of his body....Teachers were constantly humiliating and mocking Plaintiff’s
son in front of the other students and parents.” See also ¶¶ 35-36.
Supervisory liability may be imposed through §1983 upon a supervisory official in his
individual capacity acting under color of law for his own culpable action or inaction in the
training, supervision, or control of his subordinates or for conduct that shows a callous or reckless
indifference to the rights of others. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9
th
Cir. 1991);
Harper v. Poway Unified School District, 445 F.3d 1166, 1177 (9
th
Cir. 2006), r’hng denied, 455
F.3d 1052 (2006) (vulgar, lewd, indecent, obscene, and plainly offensive speech as well as direct
physical confrontation may impinge upon the rights of public high school students while at
school). This type of claim which includes retrospective and non-educational injuries is not
subject to the exhaustion requirements of the IDEA. Blanchard, 420 F.3d at 921.
Nevertheless, the fifth claim for relief is deficient because these allegations lack the
necessary specificity to state a §1983 claim for relief against state officials in their individual
capacity. The Third Amended Complaint does not identify which individual Defendant or
Defendants may have been supervising the actors at the time or times when Plaintiff’s rights are
alleged to have been violated. Such general allegations simply do not state a claim against any of
the individual Defendants in the individual capacities under §1983. E.g. Snohomish County, 2006
WL 692024.
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 9 of 18

Page 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 10 -
04cv1259
While it appears that Plaintiff may be able to articulate a valid claim for relief if given one
more opportunity, the pending fifth claim for relief is dismissed without prejudice.
SIXTH CLAIM FOR RELIEF
The sixth claim for relief is also brought against the individual Defendants in their
individual capacities and also seeks compensatory and punitive damages. Because the individual
Defendants are school officials being sued under 42 U.S.C. §1983 in their individual capacities,
the Eleventh Amendment does not bar this claim. Price v. Akaka, 928 F.2d at 828.
However, the claim for relief is too vague and fails to adequately allege a causal
connection between the conduct of each individual Defendant and an alleged violation of
Plaintiff’s federal constitutional rights. Plaintiff has not alleged that either Defendants Hubbard,
Cowles, Hannaman, Kanawi, Hadjiaghai, Halfaker, or any Does were personally involved in
depriving Peters of federal constitutional rights. That much is necessary to allege a § 1983 claim
against individuals acting in their individual capacity. Jeffers, 267 F.3d at 915; Hansen, 885 F.2d
at 646.
Instead, Peters alleges generally that “...the Individual Defendants (in their individual
capacity), and each of them, have acted with bad faith and with intentional disregard of Plaintiff’s
right to equal protection and substantive due process...by refusing and failing to comply with VRP
[voluntary resolution plan] agreements with the U.S. Department of Education Office of Civil
Rights....” and by “refusing and failing to comply with the CDE [California Department of
Education] direct order relief.”
The facts section of the Third Amended Complaint does not supply the necessary
allegations of causation. The only reference to an action by the California Department of
Education is found in paragraphs 37 to 40. There, according to the Third Amended Complaint,
Vista Unified School District and Guajome Park Academy was to provide some sort of
“assessment, placement, and an educational contract.” The Complaint alleges that Defendant
Hannaman appealed the decision and the appeal was denied. Finally, the Complaint then simply
alleges that the Vista Unified School District “did not provide the placement in compliance with
the direct orders of the state of California.” The reference to a VRP indicates that a VRP is a
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 10 of 18

Page 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 11 -
04cv1259
voluntary resolution plan and a failure to comply does not give rise to rights in third parties such
as Plaintiff. These allegations lack the necessary specificity to state a §1983 claim for relief
against state officials in their individual capacity. The individual Defendant causing the denial of
the federal constitutional right is not identified and the causal connection between the individual
Defendant’s allegedly wrongful conduct and the constitutional violation is not described. Such
general allegations simply do not state a claim against any of the individual Defendants in the
individual capacities under §1983. E.g. Schwartz v. Snohomish County, Case No. C05-732P, slip
op., 2006 WL 692024 (W.D. Wash. Mar. 17, 2006) (general allegations which do not adequately
set forth causal connection between actions of individuals sued in their individual capacity and the
alleged constitutional violations are subject to dismissal).
The sixth claim is dismissed without prejudice.
SEVENTH CLAIM FOR RELIEF
The seventh claim for relief is brought against the school district Defendants and the
individual Defendants in their official capacities and seeks an award of compensatory damages. It
alleges that Plaintiff’s son was denied “the benefits of school” in violation of Section 504 of the
Rehabilitation Act. The school district s and the individual Defendants are school officials being
sued in their official capacity, therefore, it is the same as a suit directly against the State of
California and the Eleventh Amendment would deprive this Court of jurisdiction to hear the claim.
Berlanger, 963 F.2d 248. Yet, were this a §504 claim dealing with vocational training, the
Eleventh Amendment would not prevent the action. Clark v. State of California, 123 F.3d 1267
(1997) (California waives immunity when it accepts funds under the Rehabilitation Act).
However, the seventh claim for relief is simply her IDEA claim recast as a damages claim
under §504. The effect is to circumvent the remedies provided under the IDEA by resort to §504.
This Plaintiff may not do. Smith v. Robinson, 468 U.S. 992, 1019 (1984) (handicapped child not
permitted to circumvent the EHA remedies by resort to §504); Mark H. v. Lemahieu, 372
F.Supp.2d 591 (D. Hawaii 2005) (consistent with Congressional intent, school student plaintiff
must pursue remedies available under IDEA rather than §504).
The seventh claim is dismissed without prejudice.
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 11 of 18

Page 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 12 -
04cv1259
EIGHTH CLAIM FOR RELIEF
Like the seventh claim for relief, the eighth claim for relief is brought against the school
district Defendants and the individual Defendants in their official capacities and seeks an award of
compensatory damages. It alleges that Plaintiff’s son was denied the benefits of school in
violation of Section 504 of the Rehabilitation Act.
However, the eighth claim for relief is simply her IDEA claim recast as a damages claim
under §504. The effect is to circumvent the remedies provided under the IDEA by resort to §504.
This Plaintiff may not do. Smith v. Robinson, 468 U.S. at 1019; Mark H. v. Lemahieu, 372
F.Supp.2d at 603.
The eighth claim is dismissed without prejudice.
NINTH CLAIM FOR RELIEF
The ninth claim for relief, like the seventh and eight claims for relief, is brought against the
school district Defendants and the individual Defendants in their official capacities and seeks an
award of compensatory damages. In short, it alleges that Plaintiff has been a public critic of the
school district and the charter school. As a result, she alleges that she has “incurred the personal
animosity” of the Defendants and that in retaliation the Defendants have denied Plaintiff’s son “the
benefits of school” in violation of §504.
Like the seventh and eighth claims, the ninth claim is an IDEA claim impermissibly recast
as a §504 claim seeking money damages unavailable under the IDEA and without exhausting
administrative remedies of the IDEA. The ninth claim is improper. Smith v. Robinson, 468 U.S. at
1019; Mark H. v. Lemahieu, 372 F.Supp.2d at 603.
The ninth claim is dismissed without prejudice.
TENTH CLAIM FOR RELIEF
The tenth claim for relief is, again, brought against the individual Defendants in their
individual capacities and also seeks compensatory and punitive damages. Because the individual
Defendants are school officials being sued under 42 U.S.C. §1983 in their individual capacities,
the Eleventh Amendment does not bar this claim. Price v. Akaka, 928 F.2d at 828.
However, the claim for relief is too vague and fails to adequately allege a causal
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 12 of 18

Page 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 13 -
04cv1259
connection between the conduct of any of the individual Defendants and a violation of Plaintiff’s
federal constitutional rights. Plaintiff has not alleged that either Defendants Hubbard, Cowles,
Hannaman, Kanawi, Hadjiaghai, Halfaker, or any Does were personally involved in depriving
Peters of federal constitutional rights. That much is necessary to allege a § 1983 claim against
individuals acting in their individual capacity. Jeffers, 267 F.3d at 915; Hansen, 885 F.2d at 646.
Instead, Peters alleges that “...the Individual Defendants (in their individual capacity), and
each of them, have denied Plaintiff’s son a FAPE [free and appropriate education] by refusing and
failing to comply with the CDE [California Department of Education] direct order relief and by
failing to comply with VRP [voluntary resolution plan] in retaliation for Plaintiff’s activist role
and public criticism of VUSD and GPACS.”
The facts section of the Third Amended Complaint does not supply the necessary
allegations of causation. The only reference to an action by the California Department of
Education is found in paragraphs 37 to 40. There, according to the Third Amended Complaint,
Vista Unified School District and Guajome Park Academy was to provide some sort of
“assessment, placement, and an educational contract.” The Complaint alleges that Defendant
Hannaman appealed the decision and the appeal was denied. Finally, the Complaint then simply
alleges that the Vista Unified School District “did not provide the placement in compliance with
the direct orders of the state of California.” The reference to a VRP indicates that a VRP is a
voluntary resolution plan and a failure to comply does not give rise to rights in third parties such
as Plaintiff.
These allegations lack the necessary specificity to state a §1983 claim for relief against
state officials in their individual capacity. There is no recognized constitutional right identified.
The right to a free education come from state statutes, not the federal Constitution. San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973). The individual Defendant causing the
denial of the rights alleged is not identified. The causal connection between the individual
Defendant’s allegedly wrongful conduct and any constitutional violation is not described. Such
general allegations simply do not state a claim against any of the individual Defendants in the
individual capacities under §1983. E.g. Schwartz v. Snohomish County, Case No. C05-732P, slip
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 13 of 18

Page 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 14 -
04cv1259
op., 2006 WL 692024 (W.D. Wash. Mar. 17, 2006) (general allegations which do not adequately
set forth causal connection between actions of individuals sued in their individual capacity and the
alleged constitutional violations are subject to dismissal). Moreover, Plaintiff seems to be urging
pro se the legal rights her son may have. For the reasons set forth in the Court’s Order dismissing
the First Complaint, a pro se plaintiff may not represent the rights of another in federal court.
The tenth claim is dismissed without prejudice.
ELEVENTH CLAIM FOR RELIEF
The eleventh claim for relief is, again, brought against the individual Defendants in their
individual capacities and also seeks compensatory and punitive damages. Because the individual
Defendants are school officials being sued under 42 U.S.C. §1983 in their individual capacities,
the Eleventh Amendment does not bar this claim. Price v. Akaka, 928 F.2d at 828.
However, like the tenth claim for relief, the eleventh claim for relief is too vague and fails
to adequately allege a causal connection between the conduct of any of the individual Defendants
and a violation of Plaintiff’s federal constitutional rights. Plaintiff has not alleged that either
Defendants Hubbard, Cowles, Hannaman, Kanawi, Hadjiaghai, Halfaker, or any Does were
personally involved in depriving Peters of federal constitutional rights. That much is necessary to
allege a § 1983 claim against individuals acting in their individual capacity. Jeffers, 267 F.3d at
915; Hansen, 885 F.2d at 646.
Instead, Peters again alleges that “...the Individual Defendants (in their individual
capacity), and each of them, have denied Plaintiff’s son a FAPE [free and appropriate education]
by refusing and failing to comply with the CDE [California Department of Education] direct order
relief and by failing to comply with VRP [voluntary resolution plan] in retaliation for Plaintiff’s
activist role and public criticism of VUSD and GPACS.”
The facts section of the Third Amended Complaint does not supply the necessary
allegations of causation. As before, the only reference to an action by the California Department
of Education is found in paragraphs 37 to 40. There, according to the Third Amended Complaint,
Vista Unified School District and Guajome Park Academy was to provide some sort of
“assessment, placement, and an educational contract.” The Complaint alleges that Defendant
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 14 of 18

Page 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 15 -
04cv1259
Hannaman appealed the decision and the appeal was denied. Finally, the Complaint then simply
alleges that the Vista Unified School District “did not provide the placement in compliance with
the direct orders of the state of California.” The reference to a VRP indicates that a VRP is a
voluntary resolution plan and a failure to comply does not give rise to rights in third parties such
as Plaintiff.
These allegations lack the necessary specificity to state a §1983 claim for relief against
state officials in their individual capacity. There is no recognized constitutional right identified.
The right to a free education come from state statutes, not the federal Constitution. San Antonio
Independent School Dist. v. Rodriguez, 411 U.S. 1. The individual Defendant causing the denial
of the alleged rights is not identified. The causal connection between the individual Defendant’s
allegedly wrongful conduct and any constitutional violation is not described. Such general
allegations simply do not state a claim against any of the individual Defendants in the individual
capacities under §1983. E.g. Schwartz v. Snohomish County, Case No. C05-732P, slip op., 2006
WL 692024 (W.D. Wash. Mar. 17, 2006) (general allegations which do not adequately set forth
causal connection between actions of individuals sued in their individual capacity and the alleged
constitutional violations are subject to dismissal). Moreover, Plaintiff seems to be urging pro se
the legal rights her son may have. For the reasons set forth in the Court’s Order dismissing the
First Complaint, a pro se plaintiff may not represent the rights of another in federal court.
The eleventh claim is dismissed without prejudice.
TWELFTH CLAIM FOR RELIEF
The twelfth claim for relief is, again, brought against the individual Defendants in their
individual capacities and also seeks compensatory and punitive damages. Because the individual
Defendants are school officials being sued under 42 U.S.C. §1983 in their individual capacities,
the Eleventh Amendment does not bar this claim. Price v. Akaka, 928 F.2d at 828.
However, like the tenth and eleventh claims for relief, the twelfth claim for relief is too
vague and fails to adequately allege a causal connection between the conduct of any of the
individual Defendants and a violation of Plaintiff’s federal constitutional rights. Plaintiff has not
alleged that either Defendants Hubbard, Cowles, Hannaman, Kanawi, Hadjiaghai, Halfaker, or any
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 15 of 18

Page 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 16 -
04cv1259
Does were personally involved in depriving Peters of federal constitutional rights. That much is
necessary to allege a § 1983 claim against individuals acting in their individual capacity. Jeffers,
267 F.3d at 915; Hansen, 885 F.2d at 646.
Instead, Peters again alleges that “...the Individual Defendants (in their individual
capacity), and each of them, have denied Plaintiff’s son a FAPE [free and appropriate education]
by refusing and failing to comply with the direct Order Relief from CDE and by failing to comply
with the VRP [voluntary resolution plan] in retaliation for Plaintiff’s activist role and public
criticism of VUSD and GPACS in violation of the First Amendment to the United States
Constitution.”
The facts section of the Third Amended Complaint does not supply the necessary
allegations of causation. As before, the only reference to an action by the California Department
of Education is found in paragraphs 37 to 40. There, according to the Third Amended Complaint,
Vista Unified School District and Guajome Park Academy was to provide some sort of
“assessment, placement, and an educational contract.” The Complaint alleges that Defendant
Hannaman appealed the decision and the appeal was denied. Finally, the Complaint then simply
alleges that the Vista Unified School District “did not provide the placement in compliance with
the direct orders of the state of California.” The reference to a VRP indicates that a VRP is a
voluntary resolution plan and a failure to comply does not give rise to rights in third parties such
as Plaintiff.
These allegations lack the necessary specificity to state a §1983 claim for relief against
state officials in their individual capacity. The right to an education is not a recognized
constitutional right. Any right to a free education comes from state statutes, not the federal
Constitution. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1. The individual
Defendant causing the denial of the alleged rights is not identified. The causal connection between
the individual Defendant’s allegedly wrongful conduct and any constitutional violation is not
described. Such general allegations simply do not state a claim against any of the individual
Defendants in the individual capacities under §1983. E.g. Schwartz v. Snohomish County, Case
No. C05-732P, slip op., 2006 WL 692024 (W.D. Wash. Mar. 17, 2006) (general allegations which
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 16 of 18

Page 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
There appears to be no bad faith on the part of the Plaintiff. Consequently, the first of the
five factors weighs in her favor.
- 17 -
04cv1259
do not adequately set forth causal connection between actions of individuals sued in their
individual capacity and the alleged constitutional violations are subject to dismissal). Moreover,
Plaintiff seems to be urging pro se the legal rights her son may have. For the reasons set forth in
the Court’s Order dismissing the First Complaint, a pro se plaintiff may not represent the rights of
another in federal court.
The twelfth claim is dismissed without prejudice.
V. LEAVE TO AMEND
A district court’s discretion to deny leave to amend a deficient claim or complaint is
particularly broad where a plaintiff has previously amended her complaint. Sisseton-Wahpeton
Sioux Tribe v. Unite States of America, 90 F.3d 351, 355 (9
th
Cir. 1996) (quoting Ascon Properties,
Inc. v. Mobile Oil Co., 866 F.2d 1149, 1160 (9
th
Cir. 1989)). Five factors are considered: (1) bad
faith; (2) undue delay; (3) prejudice to defendants; (4) futility of amendment; and (5) previous
opportunities to amend the complaint. Id.
Here, the second, third, fourth, and fifth factors
4
weigh against granting leave to file a
fourth amended complaint. Considering the second factor, permitting further amendment will
cause undue delay. The original Complaint was filed in June of 2004. While Plaintiff has
amended her Complaint three times since her original filing, two and one-half years have passed.
Further leave to amend will occasion further delay in getting to trial. The undue delay factor
weighs against granting leave for further amendment.
Regarding the third factor, further amendment will also prejudice the Defendants. Further
amendment will force the Defendants to incur additional attorney’s fees and costs. Moreover, as
time passes, witness memories fade – prejudicing both sides in the quest for truth. The prejudice
factor also weighs against granting further leave to amend.
The fourth factor is the futility of amendment. Of the twelve claims for relief contained in
the Third Amended Complaint, most address issues that must first be exhausted under the IDEA in
order for federal court jurisdiction to exist. Recasting an IDEA appeal as a civil rights claim is
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 17 of 18

Page 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 18 -
04cv1259
impermissible and amendment to that end would be futile. Moreover, all of her claims arise out of
the provision of a public school education to her minor son. It is not at all clear, that as a matter of
law, plaintiff may pursue the various rights and remedies she seeks on her own behalf. What is
clear, however, is that she may not represent pro se her child in asserting the child’s rights and
remedies in federal court. Only one claim out of the twelve (the fifth claim for relief) appears to
contain allegations that if correctly pled might state a valid claim for relief over which a federal
court might have jurisdiction. The futility factor weighs against granting leave to further amend.
The fifth factor considers whether plaintiff has previously amended her complaint. Here,
plaintiff has previously amended her complaint on three occasions. The previous amendment
factor weighs heavily against granting leave to further amend.
Four factors weigh against granting leave to further amend the Complaint. One factor (the
absence of Plaintiff’s bad faith) weighs in favor of granting leave. Having considered all of the
factors, the Court finds that in the interests of justice the Third Amended Complaint is dismissed
in its entirety without leave to amend.
VI. CONCLUSION
The Defendants’ Motions to Dismiss are granted. The Third Amended Complaint is
dismissed in its entirety, without prejudice, and without leave to amend.
IT IS SO ORDERED.
DATED: October 25, 2006
Hon. Roger T. Benitez
United States District Judge
Case 3:04-cv-01259-BEN-POR Document 112 Filed 10/25/2006 Page 18 of 18