1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN LILLY, SR., and BRENDA Case No.: 21-CV-1703 TWR (MSB) LILLY, individually, and on behalf of the 12 Estate of Brian Lilly, Jr., ORDER (1) GRANTING BOND’S 13 MOTION TO DISMISS; Plaintiffs, (2) GRANTING BOARD OF 14 v. REGENTS, MCGANN, AND 15 EDWARDS’ MOTION TO DISMISS; UNIVERSITY OF CALIFORNIA-SAN AND (3) DENYING DEFENDANTS’ 16 DIEGO, BOARD OF REGENTS OF MOTION TO STRIKE UNIVERSITY OF CALIFORNIA, 17 GEOFF BOND, KATIE MCGANN, and (ECF Nos. 17, 18, 28) 18 EARL W. EDWARDS, 19 Defendants. 20 21 Presently before the Court are Defendant Geoff Bond’s Motion to Dismiss First 22 Amended Complaint (ECF No. 17 (“Bond Mot.”)) and Defendants The Regents of the 23 University of California (“Regents”), Earl Edwards, and Katie McGann’s (collectively 24 “REM”) Motion to Dismiss Portions of Plaintiff’s First Amended Complaint (ECF No. 18 25 (“REM Mot.”)). Plaintiffs Brian Lilly, Sr. and Brenda Lilly, proceeding individually and 26 on behalf of the estate of their son, Brian Lilly, Jr., filed an Opposition to REM’s Motion 27 (ECF No. 22), and an Opposition to Bond’s Motion (ECF No. 23 (“Opp’n Bond”)). 28 Plaintiffs subsequently filed a Corrected Opposition to replace ECF No. 22. (ECF No. 25 1 (“Opp’n REM”).) REM filed a Reply in support of their Motion to Dismiss (ECF No. 26 2 (“REM Reply”)), as well as a Motion to Strike the Corrected Opposition (ECF No. 28 3 (“MTS”)). Bond filed a Reply in support of his Motion to Dismiss (ECF No. 27 (“Bond 4 Reply”)). The Court held a hearing on the Motions on June 30, 2022. Having carefully 5 considered the Plaintiffs’ First Amended Complaint, the Parties’ arguments, and the 6 relevant law, the Court GRANTS Bond’s Motion to Dismiss, GRANTS REM’s Motion 7 to Dismiss, and DENIES REM’s Motion to Strike. 8 BACKGROUND 9 Plaintiffs initiated this action by filing their original Complaint on September 30, 10 2021. (See ECF No. 1.) On February 16, 2022, they filed their operative First Amended 11 Complaint (ECF No. 14 (“FAC”)) alleging: (1) Violation of Title IX (Retaliation) against 12 the Regents; (2) Violation of Fourteenth Amendment for Denial of Equal Protection under 13 42 U.S.C. § 1983 against Individual Defendants Bond, McGann, and Edwards; 14 (3) Violation of Fourteenth Amendment for Deprivation of Substantive Due Process under 15 42 U.S.C. § 1983 against the Individual Defendants; (4) Wrongful Death (C.C.P. § 377.30) 16 against the Individual Defendants; (5) Negligent Hiring against McGann and Edwards; and 17 (6) Negligent Supervision against McGann and Edwards. (See generally FAC.) 18 Plaintiffs allege that Coach Geoff Bond was hired by the University of California 19 San Diego (“UCSD”) by athletic director Edwards and associate athletic director McGann 20 following “a rushed search, lacking in due diligence.” (Id. ¶ 16.) Plaintiffs contend that 21 Bond had a history of “abuse and erratic, anti-social behavior,” which was a “poorly kept 22 secret in the tight-knit, national rowing community.” (Id. ¶ 25.) 23 Prior to his hiring at UCSD, Bond coached at the University of Pennsylvania 24 (“UPenn”). (Id. ¶ 28.) He was “ousted from UPenn after [a] mutiny, when approximately 25 25 rowers from the Men’s Heavyweight Crew team threatened to quit unless Bond was 26 removed.” (Id.) The mutiny allegedly stemmed from “his mentally abusive coaching 27 methods, unfair selection process, politically incorrect insults, old and ineffective training 28 methods,” and acting as a “barrier” between student athletes and other members of the 1 coaching staff. (Id. ¶ 29.) In June 2016, senior rowers at UPenn allegedly communicated 2 to UPenn’s athletic department that Bond “exhibited a disregard for responsible oversight 3 of the mental health of the rowers and created an abusive environment by the repeated use 4 of belittling nicknames and hostile language threatening rowers.” (Id. ¶ 30.) The seniors 5 referred to Bond as “unstable and abusive” and “mentioned student suicide as a potential 6 cost of keeping Bond on as coach.” (Id. ¶ 30.) While at UPenn, Bond would “publicly 7 humiliate[] rowers who sought mental health counseling” and “play mind games with his 8 rowers[,] confusing them intentionally so he could chastise them when they erred and target 9 rowers he viewed as weak.” (Id. ¶ 31.) 10 With McGann in charge of his hiring, UCSD hired Bond to be the men’s rowing 11 team head coach on October 1, 2019. (Id. ¶¶ 33, 38.) McGann allegedly rushed the process 12 and “did little to no independent research into Bond’s background, prior positions, or the 13 reasons he left seemingly prestigious positions.” (Id. ¶¶ 34–35.) 14 Decedent Brian Lilly, Jr. “enrolled at UCSD in the Fall 2019 semester to pursue an 15 undergraduate degree in real estate and development and to continue his passionate pursuit 16 of rowing, as a scholar-athlete of the class of 2023 men’s rowing team.” (Id. ¶ 67.) 17 Decedent was “widely regarded as the consummate teammate, always present with words 18 of encouragement and positive reinforcement.” (Id. ¶ 69.) Throughout his life, he was 19 “susceptible to body shaming” after a diagnosis of Juvenile Rheumatoid Arthritis, which 20 caused him to gain thirty pounds in middle school. (Id. ¶ 70.) He shared the “pain[] and 21 shame[] he felt from his childhood obesity with his coaches and friends on the rowing team 22 throughout his freshman year.” (Id. ¶ 70 n.2.) Plaintiffs state that “Decedent had no mental 23 health issues prior to his enrollment at UCSD.” (Id. ¶ 76.) 24 Initially, Bond’s treatment appeared to be “the run-of-the-mill tough variety, 25 including challenges to the teenagers’ toughness and sophomoric, sexually inappropriate 26 insults to challenge their manliness.” (Id. ¶ 82.) Plaintiffs assert that “[t]his culture 27 contravened the express claims of UCSD, which trumpeted to its prospective students its 28 inclusive, safe campuses as being nurturing environments, free from toxicity.” (Id. ¶ 83.) 1 Bond initially “appeared to recognize Decedent’s value to the rowing team.” (Id. ¶ 85.) 2 Decedent “did more erg machine work outs, with erg scores that were faster than the bulk 3 of his teammates and nearly all his fellow freshmen.” (Id. ¶ 86.) His “hard work and 4 competitive spirit impressed teammates and coaches alike at UCSD who wanted him for 5 his athleticism and leadership.” (Id. ¶ 86.) His work “earned and secured his spot in one 6 of the top three varsity boats,” specifically, “2V,” the second-best boat. (Id. ¶¶ 87–88.) 7 Decedent and his teammates “quickly learned” that Bond was a “sadistic bully; an angry, 8 volatile man whose rage surfaced often and unexpectedly.” (Id. ¶ 90.) The rowers were 9 “subjected to sexually inappropriate comments, petty insults, and erratic behavior.” (Id. 10 ¶ 90.) 11 As a coach, “Bond exhibited a general disregard for his student-athletes’ health and 12 well-being.” (Id. ¶ 93.) He “chastised rowers who sought independent medical treatment, 13 taught them outdated rowing techniques, and mocked the rowers who reverted to the 14 modern, effective techniques they learned previously.” (Id.) He would mock the rowers 15 “for their insufficient testosterone, ‘flaccid’ manhood, small ‘testicles’ and/or lack of 16 ‘manliness,’ in general.” (Id. ¶ 94.) Plaintiffs contend that “Bond’s conduct in engaging 17 in constant bullying, abuse, and harassment was severe, pervasive, and objectively 18 unreasonable.” (Id. ¶ 96.) He “frequently mocked the weight of certain rowers,” stating 19 that “they needed to stop eating because they were too fat, lazy, and unwilling to meet his 20 extreme demands.” (Id. ¶ 99.) “Bond first glorified rowers who worked out ‘so hard they 21 puked,’ then, after successfully inducing vomit, Bond would laugh and dismiss them as 22 ‘pussies’ for vomiting.” (Id. ¶ 103.) Bond allegedly “covered himself, and his abusive 23 harassment, after-the-fact by feigning compassion or concern for his athletes through 24 electronic communications.” (Id. ¶ 109.) 25 On January 18, 2020, the rowing team hosted an “Initiation Night” for freshman. 26 (Id. ¶¶ 112–13.) Initiation Night included, consuming “hard alcohol, syrup, whipped 27 cream, bread, cabbage, hot peppers, and carrots, all while sitting in [a] car with the heat at 28 full blast,” binge drinking challenges, and “physical activities like rowing on the erg 1 machine and spinning around until dizzy.” (Id. ¶¶ 115–16.) The night was “captured via 2 digital pictures,” and the pictures were saved by one of Decedent’s teammates, Z.B. (Id. 3 ¶¶ 118–19.) Decedent subsequently learned that Z.B. was accused of sexual misconduct 4 by multiple female UCSD students. (Id. ¶ 121.) Plaintiffs contend that the individually 5 named Defendants, as well as others, were aware of the allegations, yet failed to comply 6 with their obligations under the Office for the Prevention of Harassment & Discrimination 7 (“OPHD”) policy. (Id. ¶¶ 122, 124.) Decedent and his teammates learned “of multiple 8 reports lodged against Z.B.,” who was accused of misconduct such as groping female 9 students, sending inappropriate Snapchat photos, and attempting sexual advances despite 10 objections. (Id. ¶ 126.) Decedent was “incensed” to learn that the Coach Bond had 11 received the reports yet failed to follow OPHD protocol. (Id. ¶ 129.) 12 On January 31, 2020, Decedent met with Coach Bond and Assistant Coach Engblom 13 to tell them he was feeling sick with flu-like symptoms and that he was “suffering 14 emotionally and from a mental health perspective.” (Id. ¶¶ 134, 137.) Decedent told the 15 coaches that “Z.B.’s unchecked misconduct, and [their] failure to take action regarding the 16 allegations” was causing his “deterioration.” (Id. ¶ 138.) Bond “told Decedent to take the 17 afternoon off” and “acknowledged he was aware of the multitude of Title IX allegations 18 but assured Decedent, ‘the coaches were handling the situation.’” (Id. ¶¶ 139–40.) 19 As a result of Decedent speaking up, Bond and the captains retaliated against 20 Decedent, treating him with hostility and ostracism. (Id. ¶ 144.) Bond, for example, 21 “attacked Decedent” with insults such as “calling him a ‘pussy[;]’ doubting Decedent’s 22 ‘manliness,’ ‘testicular fortitude’ or ‘testosterone levels[;]’” and making fun of Decedent’s 23 weight. (Id. ¶¶ 150–51.) Additionally, the coaches demoted Decedent to the bottom boat 24 “immediately after” he raised his concerns. (Id. ¶ 147.) 25 Decedent got into a “heated exchange” with Z.B. on February 22, 2020, during 26 practice. (Id. ¶ 153.) Subsequently, Decedent spoke with Coach Engblom to voice his 27 concerns about Z.B.’s impact on the team and inquired whether there was a Title IX 28 investigation into Z.B. (Id. ¶ 154.) Coach Engblom informed Decedent that he and Bond 1 were “given information on the situation” and that they had “reported the sexual 2 misconduct to their superiors.” (Id. ¶ 155.) When Bond and Decedent spoke later that 3 same day, Bond informed Decedent that Z.B. was still on the team because an investigation 4 had concluded that there was “no evidence of his wrongdoing.” (Id. ¶¶ 159–60.) Decedent 5 told Bond that “this feels like psychological abuse and the team is suffering from the 6 dynamic” of Bond and Z.B. (Id. ¶ 163.) Bond recommended that Decedent “calm down 7 and speak with a therapist.” (Id. ¶ 164.) 8 Following his call with Bond, McGann called Decedent. (Id. ¶ 165.) Decedent told 9 McGann about the allegations against Z.B. and said he felt “as if he ‘was being 10 psychologically abused’ by Z.B. and the rowing coaches, and that this was ruining his 11 experience as a student athlete at UCSD.” (Id. ¶ 165.) McGann told Decedent that “these 12 things take time to investigate” and “not to conduct his own investigation.” (Id. ¶¶ 165– 13 66.) 14 Decedent and Z.B. got into another “verbal altercation” at practice on February 27, 15 2020. (Id. ¶ 174.) Afterwards, Bond “berated” Decedent and Z.B. for their conduct and 16 told them, “[i]f the two of you can’t get along, you’ll both be kicked off the team.” (Id. ¶ 17 175.) Following the practice, “Decedent met with a counselor who worked for CAPS, a 18 mental health clinic at UCSD.” (Id. ¶ 177.) 19 Due to the COVID-19 pandemic, and the suspension of all NCAA sports, Decedent 20 returned home to New York in March 2020. (Id. ¶¶ 188–89.) In April 2020, in response 21 to an anonymous UCSD survey, Decedent provided twenty-three pages of feedback 22 regarding Bond’s misconduct and the mishandling of Title IX complaints against Z.B. (Id. 23 ¶ 191.) Decedent included the statement, “I had a few fleeting thoughts of suicide 24 throughout the process but decided not to mention them because they didn’t seem like a 25 major threat to me and I was afraid of the implications of revealing them.” (Id. ¶ 193.) 26 Once home, Decedent’s mental health “deteriorated and worsened in the months 27 following as a direct result of Bond’s abuse.” (Id. ¶ 198.) He “suffered from immense 28 sadness, paranoia, and disorientation.” (Id. ¶ 199.) He began “skipping meals, workouts, 1 and sleep” and “self-medicated with drugs to escape.” (Id. ¶ 200.) “On July 21, 2020, after 2 several days without sleep and minimal food, Decedent’s fear, paranoia, and delusions 3 reached dangerous levels.” (Id. ¶ 201.) He had a “schizophrenic and psychotic episode, 4 necessitating hospitalization for in-patient mental health treatment.” (Id. ¶ 202.) Decedent 5 began “intensive therapy and drug treatment to control his symptoms, emotional pain, 6 psychosis, and schizophrenia caused by the abuse he suffered at UCSD.” (Id. ¶ 203.) 7 After reaching a “stable place” towards the end of 2020, he returned to UCSD in late 8 December 2020. (Id. ¶¶ 205–06.) Around December 23, 2020, Plaintiffs allege that 9 Decedent informed Bond that he would be opting out of the Spring 2021 rowing season 10 due to COVID-19 restrictions; however, he did not receive any response. (Id. ¶ 209.) On 11 January 4, 2021, Decedent took his life. (Id. ¶ 211.) 12 LEGAL STANDARD1 13 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 14 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 15 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 16 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). “A district court’s dismissal for failure to 17 state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of 18 a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 19 theory.’” Id. at 1242 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th 20 Cir. 1988)). 21 “Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and 22 plain statement of the claim showing that the pleader is entitled to relief.’” Ashcroft v. 23 Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). “[T]he pleading 24 standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands 25
26 1 Defendant Bond states that his Motion to Dismiss is pursuant to FRCP 12(b)(1) and 12(b)(6). 27 Bond appears to conflate the two subsections, (see Bond Mot. at 7), as 12(b)(1) is a Motion to Dismiss for Lack of Subject-Matter Jurisdiction, yet Bond does not include any arguments relevant to subject-matter 28 1 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678 2 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “[a] 3 pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a 4 cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555). 5 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 6 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 7 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads 8 factual content that allows the court to draw the reasonable inference that the defendant is 9 liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “[W]here the 10 well-pleaded facts do not permit the court to infer more than the mere possibility of 11 misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is 12 entitled to relief.’” Id. at 679 (second alteration in original) (quoting Fed. R. Civ. P. 13 8(a)(2)). 14 “If a complaint is dismissed for failure to state a claim, leave to amend should be 15 granted ‘unless the court determines that the allegation of other facts consistent with the 16 challenged pleading could not possibly cure the deficiency.’” DeSoto v. Yellow Freight 17 Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well 18 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). “A district court does not err in 19 denying leave to amend where the amendment would be futile.” Id. (citing Reddy v. Litton 20 Indus., 912 F.2d 291, 296 (9th Cir. 1990), cert. denied, 502 U.S. 921 (1991)). 21 ANALYSIS 22 I. Title IX (Retaliation) 23 “Title IX prohibits sex discrimination by recipients of federal education funding.” 24 Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). Actionable “sex 25 discrimination” includes retaliation “against a person because he complains of sex 26 discrimination.” Id. at 174, 178 (emphasis in original); see also Emeldi v. Univ. of Oregon, 27 698 F.3d 715, 725 (9th Cir. 2012) (speaking out against sex discrimination is a protected 28 activity). To prevail on a retaliation claim under Title IX, a plaintiff lacking “direct 1 evidence of retaliation must first make out a prima facie case of retaliation by showing 2 (a) that he or she was engaged in protected activity, (b) that he or she suffered an adverse 3 action, and (c) that there was a causal link between the two.”2 Emeldi, 698 F.3d at 724. A 4 prima facie case requires a “minimal showing of retaliation.” Id. 5 An adverse action exists when “a reasonable [person] would have found the 6 challenged action materially adverse, which in this context means it well might have 7 dissuaded a reasonable [person] from making or supporting a charge of discrimination.” 8 Emeldi, 698 F.3d at 726 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 9 68 (2006)). The causal link between this adverse action and the protected activity is 10 “construed broadly,” and a plaintiff only has to prove that the protected activity and the 11 adverse action were not “completely unrelated.” Id. (quoting Poland v. Chertoff, 494 F.3d 12 1174, 1181 (9th Cir. 2007)). As in Title VII cases, “causation ‘may be inferred from 13 circumstantial evidence, such as the [defendant’s] knowledge that the plaintiff engaged in 14 protected activities and the proximity in time between the protected action and the allegedly 15 retaliatory’ conduct.” Ollier, 768 F.3d at 869 (quoting Yartzoff v. Thomas, 809 F.2d 1371, 16 1376 (9th Cir. 1987)). 17 The Regents move to dismiss the Title IX claim as there is “no official university 18 policy at issue” and, therefore, “the university must have actual notice of the offending 19 conduct,” which the First Amended Complaint fails sufficiently to allege. (REM Mot. 18– 20 19.) Plaintiffs contend that the Regents apply the incorrect standard for deliberate 21 indifference to their Title IX claim. The Regents apply Karasek v. Regents of Univ. of 22 California, 956 F.3d 1093 (9th Cir. 2020), pursuant to which 23 A plaintiff alleging a Title IX claim against a school must additionally establish five elements: (1) “the school must have exercised substantial control over both 24 the harasser and the context in which the known harassment occurred[;]” (2) 25 “the plaintiff must have suffered harassment that is so severe, pervasive, and 26 27 2 The Ninth Circuit adopts this framework from the Title VII context. See Emeldi, 698 F.3d at 724; 28 see also Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843, 867 (9th Cir. 2014). 1 objectively offensive that it can be said to deprive the plaintiff of access to the educational opportunities or benefits provided by the school[;]” (3) “a school 2 official with authority to address the alleged discrimination and to institute 3 corrective measures on the school’s behalf must have had actual knowledge of the harassment[;]” (4) “the school must have acted with deliberate indifference 4 to the harassment, such that the school’s response to the harassment or lack 5 thereof was clearly unreasonable in light of the known circumstances[;]” and (5) “the school’s deliberate indifference must have subjected the plaintiff to 6 harassment.” 7 8 See id. at 1105. These five elements apply when a plaintiff alleges a “Title IX claim against 9 a school that arises from student-on-student or faculty-on-student sexual harassment or 10 assault.” Id. 11 Plaintiffs contend that they “plead a prima facie retaliation claim.” (Opp’n REM at 12 14.) The retaliation alleged, however, was perpetuated by Coach Bond, not the Regents. 13 Schools can only be liable for their own misconduct. Davis ex rel. LaShonda D. v. Monroe 14 Cty. Bd. of Educ., 526 U.S. 629, 640 (1999). The Regents, therefore, cannot be liable for 15 a Title IX retaliation on any basis aside from deliberate indifference. See Gebser v. Lago 16 Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998) (holding that damages remedy is only 17 available under Title IX if an official, who has authority to “address the alleged 18 discrimination and to institute corrective measures on the recipient’s behalf has actual 19 knowledge” and acts with deliberate indifference). 20 Here, the only sufficient allegation that an authority figure knew about the alleged 21 retaliation was when Decedent described Bond’s “psychological abuse of him” as 22 “seemingly out of retaliation” in the April 2020 survey. (See FAC ¶ 192.) But even if 23 Plaintiffs were to properly allege—in a nonconclusory manner— that McGann violated the 24 OPHD Title IX policies by not reporting the alleged retaliation, that would not constitute 25 deliberate indifference sufficient to sustain a Title IX claim against The Regents. See 26 Karasek, 956 F.3d at 1107 (a “school’s violation of its own policies” does not typically 27 establish deliberate indifference); see also Davis, 526 U.S. 629 at 645 (“[T]he deliberate 28 indifference must, at a minimum, cause students to undergo harassment or make them 1 liable or vulnerable to it.”). Because Plaintiffs fail sufficiently to allege that the Regents 2 retaliated against Decedent, the Court GRANTS REM’s Motion to Dismiss Plaintiffs’ 3 Title IX claim against the Regents.3 4 II. 42 U.S.C. § 1983 5 “Every person who, under color of any statute, ordinance, regulation, custom, or 6 usage, of any State or Territory or the District of Columbia, subjects, or causes to be 7 subjected, any citizen of the United States or other person within the jurisdiction thereof to 8 the deprivation of any rights, privileges, or immunities secured by the Constitution and 9 laws, shall be liable to the party injured in an action at law, suit in equity, or other proper 10 proceeding for redress.” 42 U.S.C.A. § 1983. Here, Plaintiffs allege violations of § 1983 11 under equal protection and substantive due process. 12 A. Fourteenth Amendment Denial of Equal Protection 13 To establish a § 1983 equal protection violation, a plaintiff “must show that the 14 defendants, acting under color of state law, discriminated against them as members of an 15 identifiable class and that the discrimination was intentional” or that the defendants “acted 16 with deliberate indifference.” Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 17 1134–35 (9th Cir. 2003). “Liability under § 1983 must be based on the personal 18 involvement of the defendant,” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), 19 meaning that “[s]upervisory personnel . . . cannot be held liable under § 1983 for the actions 20 of their employees under the theory of respondeat superior.” Walsh v. Tehachapi Unified 21 Sch. Dist., 827 F. Supp. 2d 1107, 1116 (E.D. Cal. 2011). 22 Personal involvement can be established by causing a person to be subjected to a 23 constitutional deprivation. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). For 24 example, a causal connection can be established by setting in motion a series of acts by 25 26 27 3 “Plaintiffs respectfully request the opportunity to amend the pleadings to add the additional Title IX deliberate indifference cause of action.” (Opp’n REM at 16.) The Court DENIES AS MOOT this 28 1 others “which the actor knows or reasonably should know would cause others to inflict the 2 constitutional injury.” Id. at 743–44. The Ninth Circuit has noted that the causation 3 standard is very similar to the foreseeability standard of proximate cause, i.e., more than 4 simply causation in fact. See Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355 5 (9th Cir. 1981). 6 1. Bond 7 Bond asserts that the Plaintiffs’ allegations of Bond “berat[ing] and mock[ing]” 8 Decedent occurred more than nine months prior to Decedent’s death and nonetheless do 9 not constitute a constitutional violation as his conduct was not “general discrimination or 10 any type of discrimination and the Equal Protection clause does not apply to retaliation 11 claims.” (Bond MTD at 10–11.) Further, Bond points out there are no allegations that 12 Bond “knew or should have known of any suicidal ideation or impulses of [Decedent] to 13 commit suicide” and, thus, Plaintiffs cannot establish proximate cause. (Id. at 15.) 14 Plaintiffs oppose, asserting that the statements Bond made to Decedent constitute sexual 15 harassment, and that harassment, in addition to Bond’s retaliation, “qualifies as intentional 16 sex discrimination” in violation of the Equal Protection Clause. (Opp’n Bond at 19.) 17 Alternatively, Plaintiffs contend that Bond was “deliberately indifferent to Z.B.’s alleged 18 sexual misconduct, as he repeatedly ignored the mounting complaints and allegations,” 19 which creates an “additional theory of liability for Bond.” (Id.) 20 Plaintiffs have not properly alleged that Decedent was a member of an identifiable 21 class. 4 Even assuming that his “class” consists of the UCSD Men’s Varsity Rowing team 22 members, Plaintiffs do not allege that Decedent was treated differently than his similarly 23 situated teammates. (See generally FAC.) Instead, allegations prior to the claims of 24 25 4 Plaintiffs allege that Decedent was a member of a protected class and was the subject of gender 26 discrimination in the form of sexual harassment. (See FAC ¶ 233.) It is not clear, however, with which protected class Decedent identified. A class “must be comprised of similarly situated persons so that the 27 factor motivating the alleged discrimination can be identified.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (quoting Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.2005)). 28 1 retaliation reference Bond’s treatment of “teammates.” For example, “Bond would 2 chastise his rowers, Decedent and his freshmen teammates, for cheering each other on 3 during intense rowing practices”; Bond “would direct the student athletes to ‘shut up’ while 4 rowing, rather the express support and encouragement for their teammates”; and “Bond 5 exhibited a general disregard for his student-athletes’ health and well-being, chastised 6 rowers who sought independent medical treatment, taught them outdated rowing 7 techniques, and mocked the rowers who reverted to the modern, effective techniques they 8 learned previously.” (Id. ¶¶ 92–93.) Similar teamwide allegations continue in additional 9 paragraphs in the First Amended Complaint. (Id. ¶¶ 94–105.) 10 The allegations of differential treatment only begin with the “deplorable conduct by 11 Bond in the Spring 2020 semester, when he engaged in retaliation against Decedent.” (Id. 12 ¶ 110.) These allegations allegedly stem from Decedent’s first meeting with Bond on 13 January 31, 2020, when he informed Bond of his mental health and emotional struggles 14 due to Z.B.’s “unchecked misconduct.” (Id. ¶¶ 134–42.) Additionally, as discussed infra 15 in Section II.A.ii., it is not clear whether retaliation can form the basis of a § 1983 claim.5 16 Finally, Plaintiffs do not allege “deliberate indifference” by Bond in their First 17 Amended Complaint. Instead, Plaintiffs improperly assert deliberate indifference in their 18 Opposition as a backstop theory of liability to hold up their § 1983 equal protection claim. 19 See Gerritsen v. Warner Bros. Entmt. Inc., 116 F. Supp. 3d 1104, 1126 (C.D. Cal. 2015) 20 (“[I]t is improper for a plaintiff to assert an unpled theory of liability in opposition to a 21 defendant’s Rule 12(b)(6) motion to dismiss.”). Due to Plaintiffs’ failure properly to allege 22
23 5 While the Ninth Circuit has not spoken clearly on the issue, other circuits have declined to 24 recognize an equal protection right to be free from retaliation. See e.g., Thompson v. City of Starkville, 25 901 F.2d 456, 468 (5th Cir.1990) (dismissing plaintiff's equal protection claim in retaliation case because it “amounts to no more than a restatement of his first amendment claim”); Vukadinovich v. Bartels, 853 26 F.2d 1387, 1391–92 (7th Cir.1988) (finding that the plaintiff’s equal protection retaliation claim, based on allegation that “he was treated differently because he exercised his right to free speech,” “is best 27 characterized as a mere rewording of [his] First Amendment-retaliation claim”); Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997) (“A pure or generic retaliation claim, however, simply does not implicate 28 1 that Decedent was a member of an identifiable class and that he was treated differently than 2 his similarly situated teammates, the Court GRANTS Bond’s Motion to Dismiss Plaintiffs’ 3 § 1983 Equal Protection claim. 4 2. McGann and Edwards 5 McGann contends that the “allegations against [her] do not reflect intentional 6 conduct necessary to state a Section 1983 claim against her for constitutional violations.” 7 (REM Mot. at 25.) Plaintiffs alleged two instances of contact between McGann and 8 Decedent. (FAC ¶¶ 159, 164–65.) First, McGann called the Decedent following his phone 9 call conversation with Bond. (Id. ¶ 165.) Second, Bond copied McGann on an email sent 10 to Decedent and Z.B. regarding their conflict at practice. (Id. ¶ 179.) McGann informed 11 the Decedent that an investigation into Z.B.’s conduct was underway, and McGann 12 contends that “agreeing to investigate a student’s report of vague ‘abuse’ is not indicative 13 of intentional discrimination on the basis of a protected characteristic.” (REM Mot. at 26.) 14 McGann notes that the First Amended Complaint does not allege that “Edwards, McGann, 15 or other employees other than the alleged harasser were aware that decedent was allegedly 16 subjected to different treatment . . . by Bond.” (Id. at 24.) Rather, the First Amended 17 Complaint “states that Bond covered up his behavior with ‘faux compassion’ whenever his 18 supervisors, like McGann, observed him at practice.” (Id.; see also FAC ¶ 109.) 19 Additionally, Plaintiffs do not allege that McGann “personally participated in any further 20 sexually inappropriate conduct” after allegedly learning about Bond’s conduct through the 21 anonymous April 2020 survey. (REM Mot. at 24.) McGann contends that Plaintiffs argue 22 that she was deliberately indifferent in an attempt to plead around her lack of personal 23 participation. (REM Reply at 7.) McGann asserts that because there was no personal 24 participation in an equal protection violation, this cause of action against her should be 25 dismissed. (Id.) 26 Edwards states that the “FAC states insufficient facts reflecting [his] personal 27 participation in violation of decedent’s constitutional rights” because it “merely alleges in 28 conclusory fashion that Edwards was somehow made aware of the decedent’s anonymous 1 response to the April 2020 survey, and Edwards somehow allowed Bond to ‘harass’ 2 students (not the decedent) between April 2020 and December 2020.” (REM Mot. at 26.) 3 Like McGann, Edwards asserts that because there was no personal participation in an equal 4 protection violation, this cause of action should be dismissed against him. (Id. at 24.) 5 McGann and Edwards both rely on Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 6 2020), cert. denied, 141 S. Ct. 2754 (2021), for the premise that the “Equal Protection 7 Clause does not recognize pure retaliation claims.” (See REM Mot. at 23). This reliance 8 is misplaced for two reasons. First, as against McGann and Edwards, Plaintiffs do not 9 primarily ground their § 1983 Equal Protection claim in retaliation (unlike the retaliation 10 allegations against Bond described supra in Section II.A.1). (See FAC ¶ 233.) Instead, 11 Plaintiffs allege that Decedent was “the subject of gender discrimination in the form of 12 sexual harassment, and reasonably perceived the environment at UCSD as hostile and 13 abusive.” (Id.) Two paragraphs later, Plaintiffs reference an increase in “hostility and 14 abuse” after he “reported and commented on the Title IX complaints;” however, Plaintiffs’ 15 primary focus is on Bond’s initial alleged harassment of Decedent. (See id. ¶ 235.) 16 Plaintiffs then allege that McGann knew about the “abuse and hostility” and the “sexually 17 inappropriate attacks” but make no reference to any retaliatory behavior by McGann. (Id. 18 ¶ 237.) Plaintiffs finally allege that Edwards was “made aware” of Decedent’s “troubling 19 responses” in the April 2020 survey but, again, make no allegations of any retaliatory 20 behavior by Edwards. (Id. ¶ 239.) 21 Second, Wilcox was decided by the Fourth Circuit and thus is not binding on this 22 Court. Further, unlike the Fourth Circuit, the Ninth Circuit appears to have recognized that 23 such a claim may in fact exist. See Thomas v. City of Beaverton, 379 F.3d 802, 812–13 24 (9th Cir. 2004) (affirming summary judgment in favor of defendants because, “although 25 there is evidence that the defendants retaliated against Plaintiff for opposing retaliation . . 26 . [,] there is insufficient evidence that any of the retaliation . . . was motivated by racial 27 animus”); contra Garrett v. Governing Bd. of Oakland Unified Sch. Dist., No. 21-CV- 28 03323-HSG, 2022 WL 344971, at *7 (N.D. Cal. Feb. 4, 2022) (“[I]t is undisputed that 1 neither the U.S. Supreme Court nor the Ninth Circuit has recognized an Equal Protection 2 Claim as viable under a retaliation theory like the one in this case.”). 3 Although Wilcox is inapposite, Plaintiffs fail properly to allege § 1983 equal 4 protection claims against McGann and Edwards. First, as discussed supra in Section 5 II.A.1, Plaintiffs do not properly allege Decedent is a member of a class. Second, there are 6 no allegations that McGann or Edwards treated Decedent any differently than any of his 7 similarly situated teammates. Third, there are no allegations of “deliberate indifference” 8 sufficient to support an equal protection claim. Deliberate indifference is a “response to 9 the harassment or lack thereof [that was] clearly unreasonable in light of the known 10 circumstances.” Karasek, 956 F.3d at 1105. Plaintiffs, however, have not alleged that 11 McGann’s or Edwards’ behavior was “clearly unreasonable.” Instead, the allegations 12 against McGann and Edwards are conclusory, stem from “presum[ptions],” and are based 13 on “information and belief.” (FAC ¶¶ 194, 239.) See Marks v. U.S. (Dep’t of Just.), 578 14 F.2d 261, 263 (9th Cir. 1978) (“Conclusory allegations unsupported by factual data will 15 not create a triable issue of fact.”). Because Plaintiffs fail properly to allege equal 16 protection violations by McGann and Edwards, the Court GRANTS McGann and 17 Edwards’ Motion to Dismiss Plaintiffs’ § 1983 Equal Protection claims. 18 B. Fourteenth Amendment for Deprivation of Substantive Due Process 19 “To establish a substantive due process claim, a plaintiff must, as a threshold matter, 20 show a government deprivation of life, liberty, or property.” Nunez v. City of Los Angeles, 21 147 F.3d 867, 871 (9th Cir. 1998). That deprivation must have a causal connection to the 22 resulting adverse action. See id. at 874. Parents have a constitutionally protected right to 23 associate with their children. Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008). Thus, 24 a claim for loss of association is properly stated as a violation of the Fourteenth 25 Amendment right to substantive due process. Id. 26 Official conduct that “shocks the conscience” constitutes a due process violation. 27 Id. at 1137. “What state of mind shocks the conscience depends on the circumstances of a 28 particular case.” Walsh v. Tehachapi Unified Sch. Dist., 827 F. Supp. 2d 1107, 1119 (E.D. 1 Cal. 2011) (quoting Provencio v. Vazquez, 258 F.R.D. 626, 640 (E.D.Cal.2009)). “Mere 2 negligence” is not enough to shock the conscience. Id. 3 1. Bond 4 Bond contends that his conduct does not shock the conscience, as the comments 5 alleged as verbal harassment are not sufficient to constitute a constitutional violation. 6 (Bond Mot. at 10.) Plaintiffs counter that “Bond’s bullying, mind games, psychological 7 abuse, retaliation, social ostracism and sexual harassment, particularly given the power he 8 wielded over Decedent and his other teenaged, student-athlete rowers,” shocks the 9 conscience. (Bond Opp’n at 23.) But verbal abuse or harassment, without more, are not 10 sufficient to state a claim for constitutional deprivation. Oltarzewski v. Ruggiero, 830 F.2d 11 136, 139 (9th Cir. 1987). While Bond’s conduct may not be the coaching style Decedent 12 or his teammates desired, it cannot be said to shock the conscience such that it rises to a 13 deprivation of a constitutional right. The Court therefore GRANTS Bond’s Motion to 14 Dismiss Plaintiffs’ § 1983 Substantive Due Process claim. 15 2. McGann and Edwards 16 McGann and Edwards assert that their conduct does not “shock the conscience” and 17 thus Plaintiffs’ § 1983 claim for denial of substantive due process fails. (REM Mot. at 24.) 18 Plaintiffs allege that “Bond (but not Edwards or McGann) subjected the decedent to verbal 19 harassment and abuse” but fail to allege that Edwards or McGann “allowed Bond to engage 20 in conscience-shocking behavior, much less engaged in conscience-shocking behavior 21 themselves.” (Id. at 25.) Plaintiffs oppose, stating that they “allege that Decedent made 22 McGann and, by reasonable inference, Edwards, aware” of Bond’s “relentless, abusive, 23 harassing, and retaliatory conduct” as early as February 2020. (REM Opp’n at 31.) 24 Further, Plaintiffs note that Decedent “referenced his suicidal ideation in the April 2020 25 anonymous survey response,” yet McGann and Edwards “took no action to protect 26 Decedent, redress the effects of the harassment, or prevent Bond from inflicting further 27 harm on Decedent and/or his friends and teammates.” (Id.) 28 / / / 1 McGann’s conduct cannot be said to shock the conscience. There are no allegations 2 that McGann witnessed Bond’s alleged misconduct. The only allegation of her firsthand 3 experience with Bond suggests that she saw his “faux compassion.” (FAC ¶ 109.) Further, 4 the only allegation of interaction between McGann and Decedent occurred when she called 5 Decedent following his phone call with Bond. (Id. ¶ 165.) Plaintiff told her that “he felt 6 as if he ‘was being psychologically abused’ by Z.B. and the rowing coaches, and that this 7 was ruining his experience as a student athlete at UCSD.” (Id.) McGann’s response, 8 indicating that there was an ongoing investigation without further details, is not conscience 9 shocking. Indeed, it would be more “shocking” for an athletic director to inform a student- 10 athlete of details regarding an incomplete and ongoing investigation into a peer. In April 11 2020, McGann “request[ed]” that Decedent fill out an “allegedly anonymous UCSD 12 survey” to give feedback about the men’s rowing team. (Id. ¶ 191.) Although Decedent 13 stated that he “had a few fleeting thoughts of suicide throughout the process,” he also 14 notably said that those thoughts “didn’t seem like a major threat to [him].” (Id. ¶ 193.) 15 While McGann was perhaps negligent in her lack of response, neither McGann’s lack of 16 response, nor her conversation with Decedent rose to the level of being conscience- 17 shocking. Thus, the Court GRANTS McGann’s Motion to Dismiss Plaintiffs’ § 1983 18 Substantive Due Process claim. 19 As discussed supra in Section II.A.2, the allegations against Edwards are 20 conclusory, stem from “presum[ptions],” and are based on “information and belief.” (FAC 21 ¶¶ 194, 239); see also Marks, 578 F.2d at 263. Thus, the Court also GRANTS Edwards’ 22 Motion to Dismiss Plaintiffs’ § 1983 Substantive Due Process claim. 23 III. Negligence 24 McGann and Edwards request in their “Notice of Motion” that, “should the Court 25 dismiss the second and third causes of action . . . [,] the Court [should] decline to exercise 26 supplemental jurisdiction over the pendant state law claims against Defendants Edwards 27 and McGann pursuant to 28 U.S.C. § 1367.” (REM Mot. 3.) Despite that request, they 28 / / / 1 fail to brief any of the negligence claims. Defendant Bond moves to dismiss Plaintiffs’ 2 negligence claim for wrongful death. (Bond Mot. at 8.) 3 The Court is granting Plaintiffs leave to amend their Complaint (see infra 4 Conclusion). It is therefore premature for the Court to decide whether the exercise of 5 supplemental jurisdiction over Plaintiffs’ California state law claims is appropriate. The 6 jurisdictional challenge to the wrongful death, negligent hiring, and negligent supervision 7 claims is DENIED WITHOUT PREJUDICE. 8 IV. Punitive Damages 9 McGann and Edwards move to dismiss Plaintiffs’ request for punitive damages. 10 (REM Mot. at 28.) Plaintiffs assert that is it premature to determine punitive damages 11 because the evaluation requires a factual analysis. (Opp’n REM at 33.) “[A] jury may be 12 permitted to assess punitive damages in an action under § 1983 when the defendant’s 13 conduct is shown to be motivated by evil motive or intent, or when it involves reckless or 14 callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 15 30, 56 (1983). As Plaintiffs’ § 1983 claims are dismissed with leave to amend, (see infra 16 Conclusion), it is premature to determine whether punitive damages would be appropriate. 17 McGann and Edwards’ Motion to Dismiss Punitive Damages is DENIED WITHOUT 18 PREJUDICE. 19 V. Qualified Immunity 20 The applicability of qualified immunity should be decided as early as possible in 21 litigation—preferably before discovery—as it is a complete immunity from suit, not solely 22 a defense to liability. Pearson v. Callahan, 555 U.S. 223, 231–32 (2009). In consideration 23 of this preference, and notwithstanding the above analysis, the Court finds that Defendants 24 Bond, McGann, and Edwards are entitled to qualified immunity—providing an 25 independent basis for the Court to dismiss Plaintiffs’ § 1983 claims. 26 Qualified immunity “protects government officials ‘from liability for civil damages 27 insofar as their conduct does not violate clearly established statutory or constitutional rights 28 of which a reasonable person would have known.’” Id. at 231 (quoting Harlow v. 1 Fitzgerald, 457 U.S. 800, 818 (1982)). Qualified immunity applies to a government 2 official’s error—whether it is a mistake of law, mistake of fact, or mixed question of law 3 and fact. Id. A right is “clearly established” when it is “sufficiently clear that every 4 reasonable official would have understood that what he is doing violates that right.” 5 Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 6 (2012)). Courts “do not require a case directly on point, but existing precedent must have 7 placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 8 U.S. 731, 741 (2011). 9 In Saucier v. Katz, the Supreme Court provided a two-step inquiry to determine 10 whether an official is entitled to qualified immunity. See 533 U.S. 194 (2001). First, a 11 court must determine whether the facts that the plaintiff has alleged would be a violation 12 of a constitutional right. Pearson, 555 U.S. at 232. Second, a court must determine 13 whether the constitutional right was clearly established at the time of the official’s alleged 14 misconduct. Id. In Pearson, though acknowledging the Saucier steps are “beneficial,” the 15 Supreme Court recognized that a court has discretion to decide which prong of the 16 “analysis should be addressed first in light of the circumstances in the particular case at 17 hand.” Id. at 236. 18 Here, the Court begins and ends with the first prong. As discussed supra Section II, 19 Plaintiffs do not properly allege any § 1983 violations by Defendants. Therefore, the facts, 20 as alleged, could not be a violation of a constitutional right. Accordingly, Defendants 21 Bond, McGann, and Edwards are entitled to qualified immunity and the Court 22 DISMISSES WITHOUT PREJUDICE Plaintiffs’ § 1983 claims. The Court recognizes 23 that should Plaintiffs choose to amend their Complaint, this analysis may change, and the 24 Court will reconsider the issue if appropriate. 25 / / / 26 / / / 27 / / / 28 / / / 1 V. Motion to Strike Plaintiffs’ Corrected Opposition 2 REM move to strike and object to Plaintiffs’ “Corrected Opposition” pursuant to 3 FRCP 12(f) and/or FRCP 11.”6 (See generally MTS.) Plaintiffs’ opposition to REM’s 4 Motion to Dismiss was due on June 2, 2022. (Id. at 2.) Plaintiffs filed an opposition on 5 June 2, 2022, (see ECF No. 22), but subsequently filed a “Corrected Opposition” on June 6 10, 2022. (See ECF No. 25.) REM contend that ECF No. 25 “unreasonably prejudiced 7 Defendants, who already spent substantial time preparing the Reply to Plaintiffs’ original 8 Opposition.” (MTS at 2.) A redline of the two oppositions confirms that most edits simply 9 created a more succinct pleading, as opposed to adding new arguments. Therefore, the 10 Court DENIES the Motion to Strike. Plaintiffs’ operative Opposition against REM’s 11 Motion to Dismiss is ECF No. 25. 12 CONCLUSION 13 In light of the foregoing, the Court GRANTS Bond’s Motion to Dismiss and 14 DISMISSES WITHOUT PREJUDICE all § 1983 claims against Bond. The Court also 15 GRANTS the Regents, McGann, and Edwards’ Motion to Dismiss and DISMISSES 16 WITHOUT PREJUDICE the Title XI claim against the Regents and the § 1983 causes 17 of action against McGann and Edwards. The Court DENIES WITHOUT PREJUDICE 18 the challenge to supplemental jurisdiction over the state law negligence claims against 19 Bond, McGann, and Edwards. The Court also DENIES WITHOUT PREJUDICE the 20 motion to dismiss Plaintiffs’ claim for punitive damages and DENIES WITHOUT 21 PREJUDICE Defendants’ qualified immunity motion. Finally, the Court DENIES 22 REM’s Motion to Strike. (ECF No. 28.) 23
24 25 6 Pursuant to Federal Rule of Civil Procedure 12(f), “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act . 26 . . on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.” Federal Rule of Civil Procedure 11 allows the court 27 to “strike an unsigned paper,” see Fed. R. Civ. P. 11(a), or impose sanctions on grounds that do not appear 28 to apply here. See Fed. R. Civ. P. 11(c). 1 Plaintiff MAY FILE an amended complaint curing the deficiencies outlined in this 2 || Order within fourteen (14) days of the electronic docketing of this Order. Should Plaintiff 3 || elect not to file a timely amended complaint, this action will be dismissed without prejudice 4 || without further Order of the Court. 5 IT IS SO ORDERED. 6 || Dated: October 19, 2022 —_—— (2 [59 bre 8 Honorable Todd W. Robinson 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28