2 UNITED STATES DISTRICT COURT
3 DISTRICT OF NEVADA
4 JAMES BENTHIN, an individual, Case No. 3:24-cv-00428-ART-CSD
5 Plaintiff, ORDER v. 6 WASHOE COUNTY SCHOOL 7 DISTRICT, a political subdivision of the State of Nevada; DOES I through 8 XX; and ROE CORPORATIONS I through XX, 9 Defendants. 10 11 Plaintiff James Benthin brings this case against Defendant Washoe County 12 School District (“WCSD” or “District”), alleging violations of state and federal law. 13 Following a violent incident with a student in the Special Education classroom at 14 Desert Skies Middle School, Benthin was terminated from his position with 15 WCSD. Before the Court is Defendants’ Motion to Dismiss Benthin’s First 16 Amended Complaint. (ECF No. 17.) As detailed below, the Court dismisses all 17 causes of action with leave to amend. 18 I. BACKGROUND 19 The following allegations are adapted from Benthin’s First Amended 20 Complaint (“FAC”). Benthin was employed by WCSD as a paraprofessional and 21 worked within the Special Education Department at Desert Skies Middle School 22 (“Desert Skies”). (ECF No. 12 at ¶ 20.) Shortly before the incident at issue, a minor 23 student, N.L., transferred to Desert Skies from Turning Point, a self-contained 24 program within WCSD for children with special needs. Students are placed at 25 Turning Point based on having demonstrated significant behavioral regression in 26 the least restrictive environment on a middle or high school campus. (Id. at ¶ 21– 27 22.) Benthin and the special education teacher at Desert Skies, Mrs. Hood, 28 received N.L.’s education file after N.L.’s transfer, which they felt indicated that 1 N.L was a danger to students and staff. (Id. at ¶ 24.) 2 Benthin and Hood alerted Special Education Administrators, Bryan Moll 3 and Colleen Saiz, to their concerns regarding N.L. (Id.) Benthin and Hood also 4 requested a meeting to review the “Social Intervention” policies and procedures 5 with N.L., but this meeting never occurred. (Id. at ¶ 25.) According to Benthin, 6 the WCSD administrator would not provide the necessary resources for the 7 meeting and instead responded, “well you’re stuck with him.” (Id.) 8 On or around October 17, 2023, Benthin was working with a student, A. 9 Doe, in a special education classroom at Desert Skies. (Id. at ¶ 26.) N.L. entered 10 the classroom and taunted A. Doe by singing a Papa Roach song named “Last 11 Resort,” and “telling A. Doe to commit suicide.” (Id. at ¶ 27.) After Benthin and 12 Hood tried to correct N.L.’s behavior, N.L. screamed homophobic slurs, profanity, 13 and “threatened A. Doe with physical harm.” (Id.) Benthin “attempted to de- 14 escalate N.L. several times,” but those efforts were unsuccessful. (Id. at ¶ 29.) To 15 protect A. Doe, Benthin told A. Doe to go into a “small storage room adjacent to 16 the classroom and close the door.” (Id.) N.L. then took A. Doe’s backpack and 17 paraded around the room, before N.L walked over to the storage room door and 18 taunted A. Doe through it. (Id. at ¶ 30–31.) 19 According to the FAC, after Benthin stood at the storage room door, N.L. 20 attempted to “physically push Mr. Benthin away from the door to get to A. Doe.” 21 (Id. at ¶ 32.) N.L then “grabbed Mr. Benthin around the throat from behind,” 22 leading to a struggle resulting in both N.L. and Benthin being on the floor. (Id. at 23 ¶ 32.) N.L continued trying to “kick and punch” Benthin, at which point Benthin 24 restrained N.L. (Id. at ¶ 33.) 25 During the incident, Hood called the office, leading to the arrival of Ms. 26 Phillips, a WCSD Dean. (Id. at ¶ 34.) Phillips “instructed Mr. Benthin to release 27 N.L.,” after which N.L. hit Benthin in the face with a backpack, resulting in a 28 “broken nose and severe concussion.” (Id. at ¶ 35–36.) N.L then exited the 1 classroom, followed by Phillips. (Id. at ¶ 37.) 2 Ten to fifteen minutes later, N.L. broke and then climbed through the 3 outside window of the classroom. (Id. at ¶ 38–39.) N.L. picked up a chair and 4 threw it toward Benthin, hitting his desk and shattering his computer. (Id. at ¶ 5 39.) N.L. then ran off campus but was ultimately apprehended by school police 6 officers. (Id. at ¶ 40–41.) 7 Soon after the incident, the Principal of Desert Skies, Ms. Quintana, asked 8 Benthin to go to the office to fill out a police report. (Id. at ¶ 42.) When Benthin 9 reached the office, he saw an unrestrained N.L. pacing in the counseling portion 10 of the office. (Id. at ¶ 43.) Benthin then spoke with school police officers regarding 11 the incident, before returning to the classroom to finish the school day. (Id. at ¶ 12 45, 47.) N.L. was taken to “Jan Evans Detention Center” but was shortly released 13 from the facility. (Id. at ¶ 46.) 14 On October 18, 2023, Benthin used sick leave to seek medical attention, 15 where it was confirmed that he had a broken nose and a severe concussion, 16 among other injuries. (Id. at ¶ 49–50.) On October 20, 2023, Benthin reported 17 back to school. (Id. at ¶ 51.) Quintana attempted to have a meeting with Benthin 18 and twelve other WCSD employees to watch a video of the incident and discuss 19 “‘things that we could have done better.” (Id.) Benthin asked for union 20 representation at the meeting, which was denied, so he chose not to attend the 21 meeting. (Id.) 22 Quintana then informed Benthin that she planned on returning N.L. to 23 Benthin’s classroom. (Id. at ¶ 54.) Benthin subsequently used several sick days. 24 (Id. at ¶ 57.) During that time, Benthin attempted to file charges against N.L. with 25 the sheriff’s department, but he was told only school police had jurisdiction. (Id. 26 at ¶ 55.) He then filed a police report with the school police. (Id. at ¶ 56.) 27 In a letter dated October 31, 2023, Quintana informed Benthin that he had 28 “potentially ‘abandoned’ his position, that he was ‘absent without authorization,’” 1 and that he had “not reported to his work assignment or called to notify and 2 explain his absence since October 24, 2023.” (Id. at ¶ 58.) WCSD then terminated 3 Benthin from his position. (Id. at ¶ 61.) Benthin responded to Quintana’s letter, 4 “notifying her that he was fearful for his life” because he was told that N.L. had 5 returned to the Special Education classroom at Desert Skies. (Id. at ¶ 62.) 6 Additionally, in his response, Benthin informed Quintana that he wanted to 7 retain his position, “requested a reasonable accommodation,” and asked for N.L. 8 to be removed from the classroom for the safety of him and others. (Id. at ¶ 63.) 9 According to Benthin, he did not receive a response from Quintana or WCSD. (Id. 10 at ¶ 64.) 11 Benthin alleges seven causes of action: 1) violation of the Fourteenth 12 Amendment’s Equal Protection Clause; 2) violation of the Fourteenth 13 Amendment’s Due Process Clause; 3) Monell1 liability under 42 U.S.C. § 1983; 4) 14 intentional infliction of emotional distress; 5) assault, 6) battery; and 7) 15 negligence. 16 II. DISCUSSION 17 WCSD argues that each of Benthin’s claims must be dismissed under Rule 18 12(b)(6) for failure to state a claim. The Court dismisses all claims with leave to 19 amend. 20 A court may dismiss a complaint for “failure to state a claim upon which 21 relief can be granted.” FED. R. CIV. P. 12(b)(6). A properly pleaded complaint must 22 contain “a short and plain statement of the claim showing that the pleader is 23 entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 24 544, 555 (2007). While Rule 8 does not require “detailed factual allegations,” it 25 demands more than “labels and conclusions” or a “formulaic recitation of the 26 elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 27
28 1 See Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978). 1 Twombly, 550 U.S. at 555). 2 To sufficiently allege a claim, “a complaint must contain sufficient factual 3 matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 4 Id. (quoting Twombly, 550 U.S. at 570). In reviewing a motion to dismiss, the 5 court accepts the factual allegations in the complaint as true. Id. However, “bare 6 assertions” in a complaint amounting “to nothing more than a ‘formulaic 7 recitation of the elements’” of a claim are not entitled to an assumption of truth. 8 Id. at 680–81 (quoting Twombly, 550 U.S. at 555). The court discounts these 9 allegations because “they do nothing more than state a legal conclusion—even if 10 that conclusion is cast in the form of a factual allegation.” Moss v. U.S. Secret 11 Serv., 572 F.3d 962, 969 (9th Cir. 2009). “In sum, for a complaint to survive a 12 motion to dismiss, the non-conclusory ‘factual content,’ and reasonable 13 inferences from that content, must be plausibly suggestive of a claim entitling the 14 plaintiff to relief.” Id. 15 If the court grants a motion to dismiss for failure to state a claim, leave to 16 amend should be granted unless the deficiencies of the complaint cannot be 17 cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th 18 Cir. 1992). In accordance with Rule 15(a), the court should freely give leave to 19 amend “when justice so requires,” and in the absence of a reason such as “undue 20 delay, bad faith or dilatory motive on the part of the movant, repeated failure to 21 cure deficiencies by amendments previously allowed, undue prejudice to the 22 opposing party by virtue of allowance of the amendment, futility of the 23 amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). 24 A. Incorporation by Reference 25 The District first argues that surveillance videos that captured parts of the 26 incident can be incorporated by reference. (ECF No. 17 at 6, n. 3.) Pursuant to 27 that argument, WCSD refers to the videos at length in its motion to dismiss. The 28 District offers two justifications for this action. First, it contends that the videos 1 should be incorporated by reference because they depict part of the incident that 2 serves as the basis of Benthin’s complaint. (Id.) Second, the District argues that 3 incorporation is appropriate because the videos are included as an exhibit in the 4 District’s police report regarding the incident, which Benthin references making 5 in his FAC. (Id.) The Court finds both arguments unavailing. 6 A district court, generally, “may not consider any material beyond the 7 pleadings in ruling on a Rule 12(b)(6) motion.” Hal Roach Studios, Inc. v. Richard 8 Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). “However, material which 9 is properly submitted as part of the complaint may be considered.” Id. Similarly, 10 a court may “consider evidence on which the complaint ‘necessarily relies’ if: (1) 11 the complaint refers to the document; (2) the document is central to the plaintiff’s 12 claim; and (3) no party questions the authenticity of the copy attached to the 13 12(b)(6) motion.” Id. (citing Branch, 14 F.3d at 453–54). The “mere mention of the 14 existence of a document is insufficient to incorporate the contents of a 15 document.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). 16 Here, while Benthin mentions the surveillance videos in his complaint, they 17 are not central to his claims. (ECF No. 12 at ¶ 51.) Though the surveillance videos 18 may support a defense to allegations in the complaint, they necessarily do not 19 “form the basis of the complaint.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 20 988 (9th Cir. 2018). The surveillance videos are also not of the type of document 21 that is normally incorporated by reference. See Parrino v. FHP, Inc., 146 F.3d 699, 22 705–06 (9th Cir. 1998) (finding incorporation by reference appropriate when a 23 plaintiff’s claim about insurance coverage was based on the contents of a 24 coverage plan), as amended (July 28, 1998). The Court therefore declines to 25 incorporate the surveillance videos by reference, in this case. 26 B. Judicial Notice 27 The District next argues that the Court should take judicial notice of the 28 surveillance videos “because the District has requested it” and has supplied the 1 Court with the “necessary documents, which are capable of accurate and ready 2 determination.” (ECF No. 17 at 6, n. 3.) The District also asks the Court to take 3 judicial notice of the Washoe Education Support Professionals (WESP) Collective 4 Bargaining Agreement (“CBA”) because it is “a readily-verifiable public record and 5 the content of the CBA is not subject to reasonable dispute.” (Id.) 6 A court may only take judicial notice of “adjudicative facts that are ‘not 7 subject to reasonable dispute.’” U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) 8 (quoting FED. R. EVID. 201(b)). A fact is indisputable, and thus subject to judicial 9 notice, only if it is “either ‘generally known’ under Rule 201(b)(1) or ‘capable or 10 accurate and ready determination by resort to sources whose accuracy cannot be 11 reasonably questioned’ under Rule 201(b)(2).” Id. at 909. While a court may take 12 judicial notice of matters of public record, a court “cannot take judicial notice of 13 disputed facts contained in such public records.” Khoja, 899 F.3d at 999. 14 The District does not simply request that the Court take judicial notice of 15 the fact that the surveillance videos exist. Instead, it requests that the Court take 16 judicial notice of the contents of the videos to prove that Benthin initiated 17 physical conduct with N.L. (ECF No. 17 at 6.) This fact, among others that the 18 District allege the surveillance videos show, are disputed by Benthin and thus 19 are far beyond the usual purposes of judicial notice. (ECF No. 12.) 20 The District similarly requests that the Court take judicial notice of the 21 CBA. (ECF No. 17 at 6, n. 3.) Benthin does not reference the CBA or that he is a 22 part of the CBA in his FAC. See Coates v. Washoe Cnty. Sch. Dist., No. 3:20-CV- 23 00182-LRH-CLB, 2020 WL 7186746, at *7 (D. Nev. Dec. 4, 2020). Additionally, 24 the District provides no document or reference showing that Benthin is a 25 signatory to the CBA. See id. 26 The Court therefore denies the District’s request for judicial notice and will 27 28 1 not consider the surveillance videos or CBA2 in ruling on the motion to dismiss. 2 C. Federal Law Claims 3 Benthin alleges three federal, and four state law causes of action against 4 the District. (ECF No. 12.) The Court first addresses Benthin’s federal law claims. 5 As a preliminary matter, because Benthin “does not contest dismissal” of his 6 Equal Protection claim (ECF No. 27 at 14, n. 2), the Court grants WCSD’s motion 7 as to Benthin’s Equal Protection claim. 8 The District first advances a global defense, arguing that Benthin’s FAC 9 must be dismissed because all claims contained within the FAC are barred by 10 Nevada’s workers’ compensation statutes. (ECF No. 17 at 8–10.) Benthin 11 contends that federal constitutional claims brought under 42 U.S.C. § 1983 are 12 not barred by the state’s workers’ compensation laws. (ECF No. 27 at 14.) 13 To the extent that a worker’ compensation system precludes recovery for 14 other causes of action, it “does not preclude recovery for claims involving 15 ‘substantive rather than procedural constitutional rights.’” Jensen v. City of 16 Oxnard, 145 F.3d 1078, 1084 n.3 (9th Cir. 1998) (citing Daniels v. Williams, 474 17 U.S. 327, 338, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)) (separate opinion of 18 Stevens, J.) (“If the claim [concerns a] ... violation of one of the specific 19 constitutional claims of the Bill of Rights[ ], a plaintiff may invoke § 1983 20 regardless of the availability of the state remedy.”) 21 The District initially appears to argue for dismissal of Benthin’s entire FAC 22 based on Nevada’s workers’ compensation statutes (ECF No. 17 at 8), but later 23 only claims that Benthin’s personal injury claims are barred by the exclusive 24 remedy provisions of Nevada’s workers’ compensation statutes. (Id. at 9). Because 25 the District does not present an argument for dismissal of Benthin’s 26 constitutional claims, the Court will not address that line of reasoning. The Court
27 2 The District argues that dismissal of a complaint is appropriate when a plaintiff “fails to exhaust administrative remedies available by way of a collective bargaining agreement.” (ECF No. 17 at 10). Because the Court has declined 28 to judicially notice the CBA pursuant to the District’s motion to dismiss, the Court will not address this argument. 1 therefore finds that Benthin’s federal law claims are not barred by Nevada’s 2 workers’ compensation statutes. 3 1. Due Process 4 For his second claim, Benthin advances two distinct theories of § 1983 5 liability under the Due Process Clause:3 state-created danger and termination 6 without adequate due process. (ECF No. 12 at 87–98.) Because § 1983 claims 7 brought against a municipal entity are recognized by courts as “Monell claims,” 8 the Court construes Benthin’s allegations as asserting municipal liability under 9 Monell and addresses each in turn. See, e.g., Dougherty v. City of Covina, 654 10 F.3d 892, 900 (9th Cir. 2011). 11 The Due Process clause normally does not “impose a duty on the state to 12 protect individuals from third parties.” Martinez v. City of Clovis, 943 F.3d 1260, 13 1271 (9th Cir. 2019) (citations omitted). A state may be constitutionally required 14 to protect a plaintiff that it “affirmatively places . . . in danger by acting with 15 deliberate indifference to a known or obvious danger.” Id. (citations omitted). 16 To succeed on a state-created danger claim, a plaintiff must establish that 17 a municipal actor’s affirmative act created an “actual, particularized danger,” and 18 that the ultimate injury to plaintiff was foreseeable. Hernandez v. City of San 19 Jose, 897 F.3d 1125, 1133 (9th Cir. 2018). The actors “must have also acted with 20 ‘deliberate indifference’ to a ‘known or obvious danger.’” Id. (quoting Patel v. Kent 21 Sch. Dist., 648 F.3d 965, 974 (9th Cir. 2011)). “Deliberate indifference is a 22 stringent standard of fault, requiring proof that a municipal actor disregarded a 23 known or obvious consequence of his action.” Patel, 648 F.3d at 974. 24 In the FAC, Benthin generally alleges that WCSD deprived him of his right 25 “to be free from state-imposed violations of bodily integrity” (ECF No. 12 at ¶ 88), 26 by knowingly failing to protect Benthin and prohibit violent conduct, 27 3 See Sweaney v. Ada Cnty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (“Section 1983 . . . creates 28 a cause of action for violation of the federal Constitution and laws.”). 1 “demonstrat[ing] deliberate indifference” (Id. at ¶ 90–94.) Benthin does not allege 2 facts that show that any municipal actor affirmatively acted to place him in 3 actual, particularized danger. See Sinclair v. City of Seattle, 61 F.4th 674, 682 4 (9th Cir. 2023) (“A danger is ‘particularized’ if it is directed at a specific victim.”). 5 Instead, he claims that WCSD’s general decision to transfer N.L. to Desert Skies 6 placed Benthin in danger and “left Mr. Benthin to be harmed.” (ECF No. 12 at ¶ 7 90.) While WCSD’s decision to transfer N.L. was an affirmative act, it was a 8 general administrative decision not directed at Benthin, and thus was not 9 particularized. 10 Benthin similarly attempts to establish that WCSD’s decision to transfer 11 N.L. from Turning Point to Desert Skies constituted a municipal actor’s deliberate 12 indifference to a known and obvious danger. (Id. at ¶ 90–93.) However, Benthin’s 13 bare assertion that WCSD knew of N.L.’s “dangerous propensities” because N.L. 14 was “clearly placed in Turning Point as a result of his violent, destructive, and 15 abusive behaviors,” does not establish disregard of a known or obvious 16 consequence of WCSD’s action. (Id. at ¶ 23.) 17 While Benthin’s response to WCSD’s motion to dismiss contains additional 18 evidence regarding this claim (ECF No. 27 at 16–19), Benthin has not amended 19 his complaint to include such information. The Court thus finds that Benthin’s 20 bare allegations do not establish a violation of the Due Process Clause based on 21 a state-created danger. 22 Benthin also alleges that his termination violated procedural due process 23 requirements. (ECF No. 12 at 92.) To state a claim for procedural due process, a 24 plaintiff must show “(1) a liberty or property interest protected by the 25 Constitution; (2) a deprivation of the interest by the government; (3) lack of 26 process. Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). 27 A constitutionally protected property interest may exist in the expectation 28 of continued employment when an employee has a “legitimate claim of 1 entitlement to it.” Kekai v. Hargrave, 649 F.2d 748, 751 (9th Cir. 1981). 2 Constitutionally protected property interests are created and defined by “existing 3 rules and understandings that stem from an independent source such as state 4 law.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971 (9th 5 Cir. 1998) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). 6 “The base requirement of the Due Process Clause is that a person deprived 7 of a property interest be given an opportunity to be heard at a meaningful time 8 and in a meaningful manner.” Brewster, 149 F.3d at 984. A public employee 9 dismissible only for cause is entitled to “notice and an opportunity to respond.” 10 Hibbs v. Dep't of Hum. Res., 273 F.3d 844, 873 (9th Cir. 2001) (citing Cleveland 11 Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)). A “tenured public employee 12 is entitled to oral or written notice of the charges against him, an explanation of 13 the employer’s evidence, and an opportunity to present his side of the story.” Id. 14 In the FAC, Benthin alleges generally that he was terminated “from his 15 position without adequate due process.” (ECF No. 12 at ¶ 92). This conclusory 16 allegation is insufficient to survive a motion to dismiss. Benthin does not allege 17 that he had a constitutionally protected property interest in his position with 18 WCSD, nor does he allege that he was a public employee dismissible only for 19 cause or a tenured public employee. (ECF No. 12.) While Benthin does assert a 20 deprivation resulting from the termination of his employment, he does not allege 21 that the procedures by which he was terminated were constitutionally 22 inadequate. (Id. at ¶ 92.) 23 Though Benthin’s response to WCSD’s motion to dismiss includes 24 additional facts regarding this claim (ECF No. 27 at 16), Benthin has not amended 25 his complaint to include such information. Benthin has therefore failed to state 26 a claim for a violation of his procedural due process rights. 27 Benthin also attempts to plead facts supporting the policy element of a 28 Monell claim under a ratification theory. (ECF No. 12 at 15–17.) The District 1 argues that this cause of action should be dismissed because Benthin’s bare 2 assertions fail to sufficiently plead a Monell claim. (ECF No. 17 at 14–16.) 3 Under Monell, a government entity may not be held liable under 42 U.S.C. 4 § 1983, “unless a policy, practice, or custom of the entity can be shown to be a 5 moving force behind a violation of constitutional rights.” Id. (citing Monell, 436 6 U.S. at 694). In particular, a municipal entity “may be liable under § 1983 for 7 constitutional injuries pursuant to (1) an official policy; (2) a pervasive policy or 8 custom; (3) a failure to train, supervise, or discipline; or (4) a decision or act by a 9 final policymaker.” Horton by Horton v. City of Santa Maria, 915 F.3d 592, 602–3 10 (9th Cir. 2019). 11 “A municipality may be held liable for a constitutional violation if a final 12 policymaker ratifies a subordinate's actions.” Lytle v. Carl, 382 F.3d 978, 987 13 (9th Cir. 2004). To show ratification, plaintiff must show that “an official with 14 final policy-making authority ‘delegated that authority to, or ratified the decision 15 of, a subordinate.’” Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). 16 This claim appears to be based on an unnamed superintendent’s “custom, 17 pattern, practice and/or procedure of transferring dangerous students to schools 18 without informing the administration, teachers, and/or staff at said school.” (ECF 19 No. 12 at ¶ 103.) No superintendent has been named in this case and Benthin 20 does not identify any other official with final policy-making authority. Benthin 21 also does not identify the challenged decision made by a subordinate. The 22 complaint merely alleges the unnamed superintended would ratify “violent acts” 23 committed “against offending students, teachers, and/or staff” by “failing to 24 discipline the students,” “allowing the student to remain in the same school,” or 25 “transferring the student to [] another school within WCSD.” (Id. at ¶ 104.) 26 These allegations are too vague and conclusory to adequately plead 27 ratification. Benthin’s response to WCSD’s motion to dismiss contains additional 28 factual information regarding this claim. (ECF No. 27 at 16–19). The Court 1 therefore finds that Benthin has failed to adequately allege Monell liability against 2 WCSD based on a theory of ratification, but grants Benthin leave to amend his 3 complaint. 4 Additionally, as stated above, Benthin has not presented sufficient 5 evidence for the Court to find a violation of his rights under the Due Process 6 Clause. In the absence of an underlying violation of the plaintiff’s rights, Monell 7 liability generally cannot be imposed. See City of Los Angeles v. Heller, 475 U.S. 8 796, 799 (1986). 9 Consequently, the Court dismisses all federal law claims without prejudice 10 and grants Benthin leave to amend his complaint. 11 D. State Law Claims 12 The Court next addresses Benthin’s state law claims against the District. As 13 an initial matter, Benthin does not contest dismissal of his negligence claim. (ECF 14 No. 27 at 19, n. 4.) The Court, accordingly, dismisses that claim. 15 The District also raises several global defenses to Benthin’s state law 16 claims. The District first argues that Benthin’s FAC must be dismissed because 17 all claims contained within the FAC are barred by Nevada’s workers’ 18 compensation statutes. (ECF No. 17 at 8–10.) Benthin contends that Nevada 19 workers’ compensation statues do not apply to intentional torts. (ECF No. 27 at 20 20.) 21 Nevada workers’ compensation statutes provide the exclusive remedy of an 22 employee against his employer for accidental workplace injuries “arising out of 23 and in the course of [] employment.” Conway v. Circus Circus Casinos, Inc., 8 P.3d 24 837, 839 (Nev. 2000) (citing NRS 616A.020(1)). However, employers do not enjoy 25 immunity from liability for their intentional torts under the exclusive remedy 26 provision of workers’ compensation statutes. Id. at 840. Employees may avoid the 27 exclusive remedy provision if they factually allege that the employer “deliberately 28 and specifically intended to injure them.” Id. 1 Here, Benthin alleges IIED, assault, and battery by WCSD. (ECF No. 12 at ¶ 2 113–33.) These are intentional torts that Benthin claims that either the District 3 directly, or through N.L., carried out with the specific and deliberate intent to 4 harm him. (Id.) Thus, Benthin’s intentional tort claims are not barred by Nevada’s 5 workers’ compensation statutes. 6 Benthin’s three remaining state law claims require some manner of 7 vicarious liability on the part of the District. Under Nevada state law, an employer 8 can be vicariously responsible “only for the acts of his employees[,] not someone 9 else.” Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1223 (Nev. 1996). 10 Respondeat superior liability, or vicarious liability, attaches when an employee is 11 “under the control of the employer and when the act is within the scope of 12 employment.” Molino v. Asher, 618 P.2d 878, 879 (Nev. 1980). Thus, an actionable 13 claim “on a theory of respondeat superior requires proof that (1) the actor at issue 14 was an employee, and (2) the action complained of occurred within the scope of 15 the actor’s employment.” Rockwell, 925 P.2d at 1223. Under the doctrine of 16 respondeat superior, an “employer may be held liable for both negligent and 17 intentional acts of employees.” Burns v. Mayer, 175 F.Supp.2d 1259, 1266 (D. 18 Nev. 2001). 19 Benthin’s IIED claim does not name or refer to any actor, other than the 20 District itself, who engaged in the elements of IIED. (ECF No. 12 at 113–20.) In 21 contrast, Benthin’s fifth and sixth claims allege that the District, by and through 22 N.L., assaulted and battered Benthin. (Id. at 121–33.) However, Benthin has cited 23 no case law or statutory provisions that establish that a school district may be 24 held liable for the tortious acts of a student. 25 In Benthin’s response, he correctly notes that the District has not addressed 26 any theories of agency or vicarious liability related to Benthin’s state law claims. 27 (ECF No. 27 at 22.) Instead, for each of Benthin’s state law claims, the District 28 argues that it is a corporate entity that is incapable of forming the “requisite 1 mental state to commit an intentional tort.” (ECF No. 17 at 16–19.) The District 2 does not point to any authority supporting the proposition that Nevada school 3 districts are corporate entities incapable of being liable tortious conduct. The 4 Court therefore declines to dismiss Benthin’s state law claims based on this line 5 of reasoning. 6 1. Intentional Infliction of Emotional Distress 7 Benthin next asserts an intentional infliction of emotional distress (IIED) 8 claim, alleging that Defendants “allow[ed] a knowingly dangerous student to 9 transfer to the school and attack innocent students and Mr. Benthin” and then 10 “insinuate[ed] that Mr. Benthin was somehow to blame for the attack.” (ECF No. 11 12 at ¶ 114–15.) The District argues that this claim is insufficiently pled (ECF No. 12 17 at 16–17.) 13 To recover for IIED, a plaintiff must show (1) extreme and outrageous 14 conduct by defendant; (2) defendant's intent to cause emotional distress or 15 reckless disregard as to the probability of emotional distress; (3) plaintiff's severe 16 emotional distress; (4) and actual and proximate causation between defendant's 17 conduct and plaintiff's emotional distress. Branda v. Sanford, 637 P.2d 1223, 18 1227 (Nev. 1981); Star v. Rabello, 625 P.2d 90, 91–92 (Nev. 1981). Extreme and 19 outrageous conduct is that which is “outside all possible bounds of decency and 20 is regarded as utterly intolerable in a civilized society.” Maduike v. Agency Rent- 21 A-Car, 953 P.2d 24, 26 (Nev. 1998) (citation omitted). 22 Benthin’s allegations in support of his claim of IIED are largely conclusory. 23 Benthin does not identify any individual actor who “acted with the intent to inflict 24 emotional distress or acted recklessly when it was certain or substantially certain 25 that emotional distress would result.” (ECF No. 12 at 113–20.) Through 26 respondeat superior, the District may be liable for IIED committed by an 27 employee, if the employee was under the control of the District, and the tortious 28 act was committed within the scope of employment. Molino, 618 P.2 at 879. 1 While Benthin’s response to WCSD’s motion to dismiss contains additional 2 factual allegations that would support this claim if properly pleaded (ECF No. 27 3 at 21–22), Benthin has not amended his complaint to include these allegations. 4 The Court therefore dismisses Benthin’s intentional infliction of emotional 5 distress claim with leave to amend. 6 2. Assault and Battery 7 Benthin’s fifth and sixth causes of action are for assault and battery. (ECF 8 No. 12 at ¶ 123–126). The District argues that both claims should be dismissed 9 because they are insufficiently pled. (ECF No. 17 at 18.) 10 To establish a claim for assault, a plaintiff must show that the defendant 11 (1) intended to cause harmful or offensive physical contact, and (2) the victim was 12 put in apprehension of such contact. Restatement (Second) of Torts, § 21 (1965); 13 Burns, 175 F. Supp. 2d at 1269. 14 Similarly, to establish a battery claim, a plaintiff must show that the 15 defendant (1) intended to cause harmful or offensive contact, and (2) such contact 16 did occur. Restatement (Second) of Torts, §§ 13, 18 (1965); Burns, 175 F. Supp. 17 2d at 1269. 18 Benthin alleges that WCSD was responsible for the assault and battery by 19 N.L. because it “directed and ratified” the “malicious and intentional conduct by 20 N.L.” (ECF No. 12 at ¶ 122–24.) Such an allegation appears to be a vicarious 21 liability argument. However, as stated above, Benthin has cited no case law or 22 statutory provisions that establish that a school district may be held liable for 23 the tortious acts of a student. Accordingly, the Court finds that Benthin has failed 24 to adequately demonstrate that WCSD can be liable, by and through a student, 25 for assault and battery, but grants Benthin leave to amend his complaint. 26 E. Punitive Damages 27 Benthin seeks an award of punitive damages based on his federal and state 28 law claims. (ECF No. 12.) The District argues that Benthin’s request for punitive 1 || damages is barred by statute. (ECF No. 17 at 23). 2 Punitive damages may not be awarded for section 1983 claims against 3 || municipal entities, because such entities are unable to form the requisite intent, 4 || and punitive damages would serve to punish taxpayers. Lancaster Cmty. Hosp. v. 5 || Antelope Valley Hosp. Dist., 940 F.2d 397, 404 (9th Cir. 1991); City of Newport v. 6 || Fact Concerts, Inc., 453 U.S. 247, 268-71 (1981). 7 Furthermore, pursuant to NRS 41.035, an award of damages in a tort action 8 || against a political subdivision of the state of Nevada, like WCSD, may not include 9 || an award of punitive damages. Clements v. Airport Auth. of Washoe Cnty., 69 F.3d 10 || 321, 336-37 (9th Cir. 1995) (citing NRS 41.035(1)). 11 Accordingly, WCSD’s motion to dismiss will be granted as to Benthin’s request 12 || for punitive damages. 13 III. CONCLUSION 14 It is therefore ordered that Defendant Washoe County School District’s 15 || Motion to Dismiss (ECF No. 17) is granted. 16 Plaintiffs claims one and seven are dismissed with prejudice. 17 Plaintiffs claims two, three, four, five, and six are dismissed without 18 || prejudice and with leave to amend. 19 20 Dated this 19th day of September 2025. 21
23 24 UNITED STATES DISTRICT JUDGE 25 26 27 28