Barto v. Miyashiro

• Court: District Court, S.D. California
• Decided: April 6, 2020
• Docket: 3:19-cv-02261
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JILANNE D. BARTO, an individual, Case No.: 19-cv-2261-WQH-KSC

12 Plaintiff, ORDER 13 v. 14 DAVID MIYASHIRO, in his official capacity as Superintendent Cajon Valley 15 Union School District; JAMES MILLER, 16 JO ALEGRIA, TAMARA OTERO, and KAREN CLARK-MEJIA, each in their 17 official capacity as Trustee of Cajon Valley 18 Union School District Board of Trustees; and DOES 1 to 50, inclusive, 19 Defendants. 20 21 HAYES, Judge: 22 The matter before the Court is the Motion to Dismiss the Complaint for Lack of 23 Subject Matter Jurisdiction filed by Defendants David Miyashiro, James Miller, Jo Alegria, 24 Tamara Otero, and Karen Clark-Mejia. (ECF No. 4). 25 I. BACKGROUND 26 On November 26, 2019, Plaintiff Jilanne D. Barto filed a Complaint against 27 Defendants David Miyashiro in his official capacity as Superintendent of the Cajon Valley 28 Union School District; James Miller, Jo Alegria, Tamara Otero, and Karen Clark-Mejia in 1 their official capacities as Trustees of the Cajon Valley Union School District Board of 2 Trustees; and Does 1-50. (ECF No. 1). In the Complaint, Plaintiff alleges that she has been 3 a Trustee of the Cajon Valley Union School District Board of Trustees for twenty-five 4 years. Plaintiff alleges that she took an oath to uphold the Cajon Valley Union School 5 District Board Bylaws, which require Trustees to “provide leadership and citizen oversight 6 of the district,” to “participate in decisions pertaining to education in the district,” and to 7 not “use [the position] for private advantage or personal gain.” (Id. ¶¶ 21-23). Plaintiff 8 alleges that since her reelection to the Board in November 2018, Plaintiff “spoke 9 unfavorably about Defendants’ actions” and “question[ed] [ ] the way in which Defendants 10 spend District funds.” (Id. ¶¶ 27, 29). Plaintiff alleges that she questioned “how much 11 money District Superintendent Miyashiro has spent on his travel and conference costs” and 12 the “size and nature of expenditures from his discretionary funds.” (Id. ¶ 30). Plaintiff 13 alleges that in December 2018, Plaintiff “questioned Defendant Trustee Jo Alegria’s 14 request for payment for a missed Cajon Valley Board meeting . . . .” (Id. ¶ 31). Plaintiff 15 alleges that in May 2019, Plaintiff “raised questions about contracts with the District, 16 particularly in connection with a $600,000 contract that . . . was awarded to Dryw Otero, 17 son of Board President Defendant Tamara Otero.” (Id. ¶ 32). 18 Plaintiff alleges that Defendants attempted to silence Plaintiff and retaliated against 19 Plaintiff for her “efforts to bring to the public’s attention the financial irregularities of the 20 Defendants.” (Id. ¶ 33). Plaintiff alleges that in August 2018, Defendant Miyashiro 21 prohibited Plaintiff from contacting District employees, and Defendants refused to share 22 information exchanged during a closed session Board meeting that Plaintiff was unable to 23 attend. Plaintiff alleges that in December 2018, Defendants took Plaintiff off the rotation 24 to set the Board meeting agenda, even though it was Plaintiff’s turn. Plaintiff alleges that 25 in March 2019, Defendants refused to allow Plaintiff to use her expense card to pay for her 26 ticket to the Mayor’s lunch and refused to update Plaintiff’s phone number and photograph 27 on the District website. Plaintiff alleges that in April 2019, Defendants denied Plaintiff a 28 position on a Board committee. Plaintiff alleges that beginning in June 2019, Defendants 1 denied Plaintiff access to public comment cards and video of recorded Board meetings. 2 Plaintiff alleges that in September 2019, Defendants refused to allow Plaintiff to collect 3 reward coins that she earned. Plaintiff alleges that in October 2019, Defendants cancelled 4 Plaintiff’s expense card. Plaintiff alleges that in November 2019, Defendant Miyashiro 5 denied Plaintiff’s request to attend a conference. Plaintiff alleges that “Defendants have 6 prohibited Plaintiff from attending Board meetings and restricted her from being on District 7 property.” (Id. ¶ 46). Plaintiff alleges that Defendants “tried to coerce [Plaintiff] to sign a 8 resignation letter when she complained of their retaliation.” (Id. ¶ 47). 9 Plaintiff brings claims against Defendants under 42 U.S.C. § 1983 for violation of 10 Plaintiff’s First Amendment rights and retaliation. Plaintiff further brings claims against 11 Defendants for injunctive and declaratory relief. Plaintiff seeks “a permanent injunction” 12 against Defendants and expenses, attorneys’ fees, and costs. (Id. at 12). 13 On December 20, 2019, Defendants filed a Motion to Dismiss the Complaint for 14 Lack of Subject Matter Jurisdiction. (ECF No. 4). Defendants move to dismiss the 15 Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure 16 “on the grounds that Defendants are immune from suit in federal court pursuant to the 17 Eleventh Amendment of the United States Constitution.” (ECF No. 4 at 2). On January 13, 18 2020, Plaintiff filed an Opposition to Defendants’ Motion to Dismiss. (ECF No. 10). On 19 January 17, 2020, Defendants filed a Reply. (ECF No. 11). On February 18, 2020, Plaintiff 20 filed a Sur-Reply with leave of Court. (ECF No. 14). 21 On February 27, 2020, the Court heard oral argument on Defendants’ Motion to 22 Dismiss. 23 II. LEGAL STANDARD 24 Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move 25 for dismissal on grounds that the court lacks jurisdiction over the subject matter. Fed. R. 26 Civ. P. 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air 27 for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citing White v. Lee, 227 F.3d 28 1214, 1242 (9th Cir. 2000)). “In a facial attack, the challenger asserts that the allegations 1 contained in a complaint are insufficient on their face to invoke federal jurisdiction. By 2 contrast, in a factual attack, the challenger disputes the truth of the allegations that, by 3 themselves, would otherwise invoke federal jurisdiction.” Id. at 1039. 4 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits dismissal for “failure 5 to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). In order to 6 state a claim for relief, a pleading “must contain . . . a short and plain statement of the claim 7 showing that the pleader is entitled to relief[.]” Fed. R. Civ. P. 8(a)(2); see Ashcroft v. Iqbal, 8 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain 9 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 10 face.’” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Dismissal under 11 Rule 12(b)(6) “is proper only where there is no cognizable legal theory or an absence of 12 sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New Cingular 13 Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (quoting Navarro v. Block, 250 14 F.3d 729, 732 (9th Cir. 2001)). 15 An Eleventh Amendment immunity defense is “quasi-jurisdictional” in nature and 16 “may be raised in either a Rule 12(b)(1) or 12(b)(6) motion.” Sato v. Orange Cty. Dep’t of 17 Educ., 861 F.3d 923, 927 n. 2 (9th Cir. 2017); compare Savage v. Glendale Union High 18 Sch. Dist. No. 205, Maricopa Cty., 343 F.3d 1036, 1040 (9th Cir. 2003) (treating Eleventh 19 Amendment immunity as a matter of subject matter jurisdiction), with Elwood v. Drescher, 20 456 F.3d 943, 949 (9th Cir. 2006) (“‘[D]ismissal based on Eleventh Amendment immunity 21 is not a dismissal for lack of subject matter jurisdiction,’ but instead rests on an affirmative 22 defense.” (quoting Miles v. California, 320 F.3d 986, 988-89 (9th Cir. 2003)). Where a 23 defendant raises an Eleventh Amendment challenge based on the face of the complaint, it 24 makes no difference whether the court examines immunity under Rule 12(b)(1) or Rule 25 12(b)(6) because the standards are materially the same. The court assumes that all factual 26 allegations in the complaint are true and draws all reasonable inferences in the plaintiff’s 27 favor. See Syed v. M-I, LLC, 853 F.3d 492, 499 n. 4 (9th Cir. 2017) (discussing Rule 28 12(b)(6) standard); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (discussing Rule 1 12(b)(1) standard); Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2 2003) (explaining that “[w]here jurisdiction is intertwined with the merits, we must 3 ‘assume[ ] the truth of the allegations . . .’” (quoting Roberts v. Corrothers, 812 F.2d 1173, 4 1177 (9th Cir. 1987)). 5 III. DISCUSSION 6 Defendants contend that they are immune from Plaintiff’s suit pursuant to the 7 Eleventh Amendment of the United States Constitution because they are school officials 8 sued in their official capacities. Defendants contend that the exceptions to Eleventh 9 Amendment immunity do not apply. Defendants further contend that Plaintiff fails to state 10 a claim under 42 U.S.C. § 1983. Plaintiff contends that Defendants are not entitled to 11 Eleventh Amendment immunity because the Ex parte Young exception applies. Plaintiff 12 further contends that she sufficiently alleges claims under 42 U.S.C. § 1983. 13 a. Eleventh Amendment Immunity 14 The Eleventh Amendment of the United States Constitution provides, “The Judicial 15 power of the United States shall not be construed to extend to any suit in law or equity, 16 commenced or prosecuted against one of the United States by Citizens of another State, or 17 by Citizens or Subjects of any Foreign State.” The Eleventh Amendment presupposes that 18 “each State is a sovereign entity in our federal system” and that “‘[i]t is inherent in the 19 nature of sovereignty not to be amenable to the suit of an individual without [the 20 sovereign’s] consent.’” Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) (first 21 alteration in original) (quoting Hans v. Louisiana, 134 U.S. 1, 13 (1890)). The Eleventh 22 Amendment “enacts a sovereign immunity from suit,” and it shields a state except “where 23 there has been ‘a surrender of this immunity . . . .’” Idaho v. Coeur d’Alene Tribe of Idaho, 24 521 U.S. 261, 267 (1997) (quoting Principality of Monaco v. Mississippi, 292 U.S. 313, 25 322-23 (1934)). Eleventh Amendment immunity shields a state from suits brought by the 26 state’s own citizens as well as in suits invoking federal question jurisdiction. Coeur d’Alene 27 Tribe of Idaho, 521 U.S. at 268. 28 1 “State immunity extends to state agencies and to state officers, who act on behalf of 2 the state and can therefore assert the state’s sovereign immunity.” NRDC v. Cal. Dep’t of 3 Transp., 96 F.3d 420, 421 (9th Cir. 1996) (citing Puerto Rico Aqueduct & Sewer Auth. v. 4 Metcalf & Eddy, Inc., 506 U.S. 139, 142-46 (1993); Pennhurst State Sch. & Hosp. v. 5 Halderman, 465 U.S. 89, 101 (1984)). A state official “sued in his official capacity has the 6 same immunity as the state, and is entitled to [E]leventh [A]mendment immunity.” Pena 7 v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992) (citing Hafer v. Melo, 502 U.S. 21, 25-26 8 (1991)). 9 There are three exceptions to the general rule that states, state agencies, and state 10 officers are protected by the Eleventh Amendment from suits brought by citizens in federal 11 court. Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 817 (9th Cir. 2001), amended, 12 285 F.3d 1226 (9th Cir. 2001). 13 First, a state may waive its Eleventh Amendment defense. Second, Congress may abrogate the States’ sovereign immunity by acting pursuant to a grant of 14 constitutional authority. Third, under the Ex parte Young doctrine, the 15 Eleventh Amendment does not bar a “suit against a state official when that suit seeks . . . prospective injunctive relief.” 16

17 Id. at 817-18 (internal citations omitted) (quoting Seminole Tribe of Fla., 517 U.S. at 73). 18 i. Eleventh Amendment Immunity for School Officials 19 The Court of Appeals for the Ninth Circuit has concluded that California school 20 districts are “arms of the state” entitled to sovereign immunity under the Eleventh 21 Amendment. Sato, 861 F.3d at 934; see Belanger v. Madera Unified Sch. Dist., 963 F.2d 22 248, 251 (9th Cir. 1992) (“[U]nder California law, the school district is a state agency . . . 23 . Thus, the school district is protected by the Eleventh Amendment.”). The Eleventh 24 Amendment also bars suits against school district employees sued in their official 25 capacities. See Cole v. Oroville High Sch., 228 F.3d 1092, 1100 n. 4 (9th Cir. 2000) 26 (explaining that the district court correctly concluded that a superintendent, principal, and 27 vice principal were immune from a suit for damages in their official capacities); Eaglesmith 28 v. Ward, 73 F.3d 857, 860 (9th Cir. 1996) (holding that the Mendocino County 1 Superintendent of Schools sued in his official capacity was entitled to Eleventh 2 Amendment immunity); Adams v. Linville, No. 98-35973, 2000 U.S. App. LEXIS 29906, 3 at *3-4 (9th Cir. Nov. 20, 2000) (holding that the district court did not err in dismissing 4 claims against members of a board of trustees in their official capacities under the Eleventh 5 Amendment). 6 In this case, Defendants are the Superintendent of the Cajon Valley Union School 7 District and four Trustees of the Cajon Valley Union School District Board of Trustees. 8 Defendants are sued only in their official capacities. Defendants are “arms of the state” 9 protected by Eleventh Amendment immunity, absent an applicable exception. Sato, 861 10 F.3d at 934. 11 ii. Ex Parte Young Exception to Eleventh Amendment Immunity 12 Defendants contend that the Ex parte Young exception does not apply because “it 13 does not reach suits seeking relief against State officials for violations of state law.” (ECF 14 No. 4-1 at 16). Defendants contend that the Ex parte Young exception does not apply 15 because Plaintiff’s § 1983 claims are “not viable under federal law.” (Id. at 17). 16 Plaintiff contends that the Ex parte Young doctrine bars Defendants from asserting 17 Eleventh Amendment immunity because Plaintiff alleges continuing violations of the U.S. 18 Constitution and federal statutory law. Plaintiff contends that the Ex parte Young doctrine 19 applies because Plaintiff seeks “prospective injunctive and declaratory relief to address 20 Defendants’ First Amendment and § 1983 violations.” (ECF No. 10 at 11). 21 The Ex parte Young doctrine provides that the Eleventh Amendment “does not [ ] 22 bar actions for prospective declaratory or injunctive relief against state officers in the their 23 official capacities for their alleged violations of federal law.” Coalition to Defend 24 Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012); see Ex parte Young, 209 25 U.S. 123, 155-56 (1908)). The Ex parte Young doctrine is available “where ‘a plaintiff 26 alleges an ongoing violation of federal law, and where the relief sought is prospective rather 27 than retrospective.’” Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 28 1997) (quoting Coeur d’Alene Tribe of Idaho, 521 U.S. at 294 (O’Connor, J., concurring)). 1 “In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment 2 bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] 3 complaint alleges an ongoing violation of federal law and seeks relief properly 4 characterized as prospective.’” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 5 635, 645 (2002) (alteration in original) (quoting Coeur d’Alene Tribe of Idaho, 521 U.S. at 6 296 (O’Connor, J., concurring)). 7 Plaintiff alleges that she has spoken critically about Defendants’ spending of District 8 funds since her reelection to the Board of Trustees in November 2018. Plaintiff alleges that 9 Defendants have “sought to stop Plaintiff from taking policy positions that differ from 10 theirs” and have retaliated against Plaintiff because she spoke out. (ECF No. 1 ¶ 51). 11 Plaintiff alleges that Defendants are violating Plaintiff’s First Amendment rights by 12 requiring Plaintiff to obtain Board approval before she makes site visits or speaks with the 13 public, by banning Plaintiff from being on District property, by removing Plaintiff from 14 the Board meeting agenda-setting rotation, and by prohibiting Plaintiff from attending 15 Board meetings. Plaintiff seeks a “declaration . . . confirming Defendants violated 16 Plaintiff’s constitutional rights” (id. ¶ 69) and 17 a permanent injunction restraining Defendants from prohibiting Plaintiff from speaking to her constituents, from participating in Board Meetings, both open 18 and closed session, from participating in School District events; from using 19 her Cal Card; from visiting District schools; from attending relevant conferences; from obtaining information requested to do her job; and to 20 mandate that Plaintiff be notified of Board members events and issues to the 21 same extend as other Board members.

22 (Id. at 12). 23 The Court concludes that Plaintiff has alleged “an ongoing violation of federal law 24 and seeks relief properly characterized as prospective.” Verizon Md., Inc., 535 U.S. at 645 25 (quotation omitted); see Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (expungement 26 of disciplinary action from record was prospective relief); Lawrence Livermore Nat’l Lab., 27 131 F.3d at 841 (reinstatement constitutes prospective injunctive relief because wrongful 28 1 termination is a continuing violation, and reinstatement “would not amount to relief solely 2 for the past violation.” The Court concludes that the Ex parte Young doctrine applies, and 3 Defendants are not entitled to Eleventh Amendment immunity at this stage in the 4 proceedings. 5 b. Claims Under 42 U.S.C. § 1983 6 Defendants contend that school officials are not “persons” subject to suit under § 7 1983. (ECF No. 4-1 at 14). Defendants contend that Plaintiff “failed to allege sufficient 8 facts demonstrating a nexus between the adverse action by the Defendants and Plaintiff’s 9 protected speech or retaliation.” (Id. at 15). Defendants further contend that Plaintiff fails 10 to allege that Defendants acted pursuant to an official policy or custom. (ECF No. 11 at 5 11 (citing Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978)). 12 Plaintiff contends that Defendants are “persons” subject to suit under § 1983. (ECF 13 No. 10 at 9). Plaintiff contends that she has sufficiently pled claims against Defendants for 14 retaliation and violation of Plaintiff’s First Amendment rights. Plaintiff contends that 15 Monell’s policy or custom standard does not apply to claims against state officials sued in 16 their official capacities. (ECF No. 14 at 2). Plaintiff further contends that she sufficiently 17 alleges that Defendants acted pursuant to a policy adopted by Defendant policymakers. 18 The scope of 42 U.S.C. § 1983 and the scope of Eleventh Amendment immunity are 19 separate but related inquiries. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); 20 Lawrence Livermore Nat’l Lab., 131 F.3d at 839. “Claims under § 1983 are limited by the 21 scope of the Eleventh Amendment.” Lawrence Livermore Nat’l Lab., 131 F.3d at 839. 22 “‘States or governmental entities that are considered arms of the State for Eleventh 23 Amendment purposes’ are not ‘persons’ under § 1983.”1 Id. (quoting Will, 491 U.S. at 70). 24 25 1 42 U.S.C. § 1983 provides: 26 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of 27 any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation 28 1 Similarly, state officials sued in their official capacities are not “persons” within the 2 meaning of § 1983, because an official-capacity suit is “not a suit against the official but 3 rather is a suit against the official’s office.” Will, 491 U.S. at 71 (citing Brandon v. Holt, 4 469 U.S. 464, 471 (1985)). However, under the Ex parte Young doctrine, “[w]hen sued for 5 prospective injunctive relief, a state official in his official capacity is considered a ‘person’ 6 for § 1983 purposes” and is also not entitled to Eleventh Amendment immunity. Lawrence 7 Livermore Nat’l Lab., 131 F.3d at 839 (citing Will, 491 U.S. at 71 n. 10 (“official-capacity 8 actions for prospective relief are not treated as actions against the State”)). The Court has 9 determined that the Ex parte Young doctrine applies. Accordingly, Defendants sued in their 10 official capacities are “persons” subject to suit under § 1983. 11 42 U.S.C. § 1983 provides a cause of action against any person who, under color of 12 state law, deprives any citizen of any rights, privileges, or immunities secured by the 13 Constitution and laws of the United States. Ketchum v. Alameda Cty., 811 F.2d 1243, 1245 14 (9th Cir. 1987). A plaintiff may bring a claim under § 1983 for violation of the plaintiff’s 15 First Amendment rights. See, e.g., DeGrassi v. City of Glendora, 207 F.3d 636, 644 (9th 16 Cir. 2000). To establish a First Amendment retaliation claim, “a plaintiff must show that 17 (1) he was engaged in a constitutionally protected activity, (2) the defendant’s actions 18 would chill a person of ordinary firmness from continuing to engage in the protected 19 activity[,] and (3) the protected activity was a substantial or motivating factor in the 20 defendant’s conduct.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 21 2006); see Huskey v. City of San Jose, 204 F.3d 893, 900 (9th Cir. 2000) (explaining that 22 the plaintiff must demonstrate a “nexus” between his statements and any adverse action 23 suffered). The “timing and nature” of the alleged retaliatory activities can provide 24 circumstantial evidence of retaliation. Soranno’s Gasco v. Morgan, 874 F.2d 1310, 1316 25 (9th Cir. 1989). 26

27 to the party injured in an action at law, suit in equity, or other proper proceeding for redress 28 1 “[I]n an official-capacity action . . . a governmental entity is liable under § 1983 only 2 when the entity itself is a ‘moving force’ behind the deprivation; thus, in an official- 3 capacity suit the entity’s ‘policy or custom’ must have played a part in the violation of 4 federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985) (citations omitted) (quoting 5 Polk County v. Dodson, 454 U.S. 312, 326 (1981); Monell, 436 U.S. at 694). “Unless a 6 State has waived its Eleventh Amendment immunity or Congress has overridden it, . . . a 7 State cannot be sued directly in its own name regardless of the relief sought. Thus 8 implementation of State policy or custom may be reached in federal court only because 9 official-capacity actions for prospective relief are not treated as actions against the State.” 10 Graham, 473 U.S. at 167 n. 14 (citations omitted); see Los Angeles Cty. v. Humphries, 562 11 U.S. 29, 37 (2010) (in a suit against a municipality, holding that Monell’s “policy or 12 custom” requirement applies to § 1983 claims “irrespective of whether the relief sought is 13 monetary or prospective”); see also Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) 14 (in an official-capacity suit against administrators of state department of corrections for 15 injunctive relief, finding the administrators “liable in their official capacities only if policy 16 or custom played a part in the violation of federal law”); Norsworthy v. Beard, 74 F. Supp. 17 3d 1100, 1109 (N.D. Cal. 2014) (requiring plaintiff to allege policy or custom in an official- 18 capacity suit against state prison officials for injunctive relief). 19 A plaintiff bringing suit under § 1983 can establish official-capacity liability in one 20 of three ways: 1) by proving that an employee committed the alleged violation pursuant to 21 a “formal policy or longstanding practice or custom that constitutes the standard operating 22 procedure” of the government entity; 2) by establishing that the individual who committed 23 the violation was an “official with final policy-making authority and that the challenged 24 action itself thus constituted an act of official governmental policy;” or 3) by proving that 25 “an official with final policy-making authority ratified a subordinate’s unconstitutional 26 decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th 27 Cir. 1992) (quotations and citations omitted). “Whether a particular official has final 28 policy-making authority is a question of state law.” Id. at 1346. 1 Plaintiff alleges claims against the Superintendent of the Cajon Valley Union School 2 District and four Trustees of the Cajon Valley Union School District Board of Trustees. 3 The California Education Code provides that “[e]very school district shall be under the 4 control of a board of school trustees . . . .” Cal. Educ. Code § 35010(a). The Board has 5 powers including to “prescribe and enforce rules . . . for its own government,” Cal. Educ. 6 Code § 35010(b), “fix and prescribe the duties to be performed by all persons in public 7 school service in the school district,” Cal. Educ. Code § 35020, “provide for the payment 8 of the traveling expenses of any representative of the board when performing services 9 directed by the board,” Cal. Educ. Code § 35044, and “[s]elect a member or members of 10 the board to attend . . . any convention to which it may pay the expense of any employee,” 11 Cal. Educ. Code § 35172(f). The superintendent is “the chief executive officer of the 12 governing board.” Cal. Educ. Code § 35035(a). 13 Plaintiff alleges that after she spoke critically about Defendants’ spending of District 14 funds, Defendants cancelled Plaintiff’s expense card, refused to allow her to attend board 15 meetings or conferences, required Plaintiff to obtain Board approval before she makes site 16 visits or speaks with the public, banned Plaintiff from being on District property, and 17 removed Plaintiff from the Board meeting agenda-setting rotation. Plaintiff alleges that 18 Defendants “tried to coerce her to sign a resignation letter when she complained of their 19 retaliation.” (ECF No. 1 ¶ 47). Plaintiff alleges that “[a]s a 25-year member of the Board, 20 she had not previously experienced retaliation until her speech was contrary to Defendants’ 21 liking.” (Id. ¶ 61). The Court concludes that Plaintiff’s allegations are sufficient at the 22 pleading stage to infer that Defendants had final policymaking authority over the actions 23 alleged by Plaintiff. The Court concludes that Plaintiff’s allegations are sufficient at the 24 pleading stage to infer a causal nexus between Plaintiff’s speech and Defendants’ alleged 25 adverse actions. 26 Defendants’ Motion to Dismiss is denied. 27 /// 28 /// 1 CONCLUSION 2 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss the Complaint for 3 || Lack of Subject Matter Jurisdiction (ECF No. 4) is denied. 4 || Dated: April 6, 2020 BME: ie Z. A a 5 Hon. William Q. Hayes 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28