(PS) McGuire v. Roseville Joint Union High School District

• Court: District Court, E.D. California
• Decided: June 6, 2023
• Docket: 2:22-cv-00125
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DESIREE McGUIRE, et al., Case No. 2:22-cv-00125-TLN-JDP (PS) 12 Plaintiffs, 13 v. FINDINGS AND RECOMMENDATIONS 14 ROSEVILLE JOINT UNION HIGH SCHOOL DISTRICT, et al., 15 Defendants. 16

17 18 Plaintiff Cadence DeVault, who was a high school student at the relevant time, and her 19 mother, Desiree McGuire, proceed without counsel in this action under 42 U.S.C. § 1983. The 20 court granted defendants’ first motion to dismiss, ECF No. 6, and dismissed plaintiffs’ original 21 complaint without prejudice, see ECF Nos. 19 & 23. Plaintiffs’ first amended complaint alleges 22 that defendants violated their rights under the Fourth, Fifth, and Fourteenth Amendments, and 23 under several California state laws, by implementing and enforcing a regulation that required 24 students to wear protective face coverings at school during portions of the COVID-19 pandemic. 25 ECF No. 24. Defendants move to dismiss the first amended complaint for failure to state a claim 26 and on the basis of qualified immunity. ECF No. 25. I recommend that their motion be granted 27 and that plaintiffs’ first amended complaint be dismissed without leave to amend. 28 1 Legal Standard 2 A complaint may be dismissed for “failure to state a claim upon which relief may be 3 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a 4 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 5 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff 6 pleads factual content that allows the court to draw the reasonable inference that the defendant is 7 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 8 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it 9 requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at 10 678. 11 For purposes of dismissal under Rule 12(b)(6), the court generally considers only 12 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly 13 subject to judicial notice, and construes all well-pleaded material factual allegations in the light 14 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 15 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Dismissal 16 under Rule 12(b)(6) can be based on either: (1) lack of a cognizable legal theory, or 17 (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956. 18 Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim. 19 Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984). 20 Background 21 The factual allegations in the first amended complaint are substantially similar to those in 22 the original complaint. Allegations essential to the adjudication of defendants’ motion to dismiss 23 are set out herein; additional details are provided in the court’s September 7, 2022 findings and 24 recommendations. ECF No. 19. 25 During the events in question, plaintiff DeVault was a student at Antelope High School, a 26 school in the Roseville Joint Union High School District (“RJUHSD”); plaintiff McGuire is her 27 mother. ECF No. 24 at 10. Defendants include RJUHSD, several of its board members, and at 28 least two school administrators. Id. at 10-12. On March 13, 2020, the RJUHSD school board 1 suspended on-campus activities due to the COVID-19 pandemic, and on January 5, 2021, it 2 resumed on-campus classes with a requirement that students wear protective face masks as a 3 condition of on-campus attendance. Id. at 14-15. The mask requirement was implemented 4 pursuant to a directive of the California Department of Public Health (“CDPH”) that applied to 5 every school in California. See ECF No. 25-2 at 44.1 The directive provided that students were 6 exempt from the requirement if they had “a medical or mental health condition or disability that 7 would impede them from properly wearing or handling a face covering.” Id. 8 On at least two occasions in January 2021, DeVault’s teachers or her assistant principal, 9 defendant Gayle, instructed her to wear a mask that complied with the district’s mask policy. 10 ECF No. 24 at 15-17. In one instance, DeVault explained to her teacher that the mask “made her 11 feel anxious, dizzy to the point of passing out, and . . . trapped, as if a panic attack were about to 12 start.” Id. at 15. After the second incident, Gayle emailed McGuire to explain that DeVault was 13 required to wear a compliant mask to attend on-campus school. Id. at 16-17, 294. McGuire 14 responded on January 19, informing Gayle that DeVault “will wear the mask [she] feel[s] most 15 comfortable wearing” and providing reports that purported to show “the ineffectiveness of masks 16 and the health concerns related to prolonged wearing of masks.” Id. at 17, 296. The following 17 morning, Gayle responded to McGuire and informed her that DeVault would be required to attend 18 school remotely if she did not comply with the on-campus mask policy. Id. at 17. 19 Shortly thereafter, Gayle entered DeVault’s classroom, “smacked his hand on DeVault’s 20 desk, and said, ‘I need you to come with me.’” Id. In the assistant principal’s office, defendant 21 DeLorge—Gayle’s secretary—confiscated DeVault’s phone and instructed her to complete a 22 form entitled “Sworn Statement of Witness in Lieu of Testimony at Hearing”; DeLorge asked 23 DeVault to explain why she refused to wear an appropriate mask. Id. at 18. DeLorge allegedly 24 1 Defendants ask the court to take judicial notice of the CDPH “COVID-19 and 25 Reopening In-Person Instruction Framework & Public Health Guidance for K-12 Schools in California, 2020-2021 School Year.” ECF No. 25-2 at 2-3, 28-78. Because this document is a 26 public record and a government document available from a reliable source, and because plaintiffs 27 do not contest its accuracy, it is subject to judicial notice. See Givens v. Newsom, Case No. 2:20- cv-00852-JAM-CKD, 2021 WL 4553643, *1 (E.D. Cal. Oct. 5. 2021) (taking judicial notice of 28 CDPH guidance documents related to COVID-19). 1 refused DeVault’s request to contact McGuire before completing the statement. Id. Unlike in the 2 original complaint, the first amended complaint alleges that Gayle did not “confirm[] mask 3 compliance” before bringing DeVault to his office, and it alleges that DeVault “was in mask 4 compliance” at the time. Id. On the witness statement form, DeVault wrote, “I feel I should have 5 the right to wear a mask I feel safe in, and I don’t feel safe wearing a normal mask.” Id. at 19 & 6 302. Gayle subsequently called McGuire to inform her that “he would be removing [DeVault] 7 from in-person learning and requiring [her] to work from home until she complied with the mask 8 mandate, and [that McGuire] would need to come pick [DeVault] up from school immediately.” 9 Id. at 19-21. Thereafter, DeLorge returned DeVault’s phone and instructed her to wait outside for 10 McGuire. Id. at 21. After McGuire had picked up DeVault, Gayle sent emails to McGuire and to 11 DeVault’s teachers informing them that DeVault would “be working from home for the rest of the 12 semester, or until she decides to comply with the CDPH guidelines.” Id. at 22, 305-07. 13 Plaintiffs supply an affidavit by “an expert in the field of Industrial Hygiene” that purports 14 to dispute the efficacy of face coverings as a means of preventing the transmission of COVID-19. 15 Id. at 123-28. Plaintiffs also claim that “the mask is an experimental requirement violating the 16 Nuremberg Code . . . , requiring full disclosure of risks and benefits of wearing the mask.” Id. at 17 17. They neither allege that DeVault has a documented medical condition that would exempt her 18 from the school mask requirement nor that they gave defendants documentation of any such 19 condition. 20 Discussion 21 A. Claims Against RJUHSD and Official-Capacity Defendants 22 Plaintiffs’ federal claims are brought under 42 U.S.C. § 1983 against the RJUHSD and 23 against all defendants in both their official and personal capacities. See ECF No. 24 at 10-11, 84- 24 92. The RJUHSD and its board of trustees are state agencies immune from suits for damages 25 under the Eleventh Amendment. Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th 26 Cir. 1992) (holding that damages claims under § 1983 against a California public school district 27 are barred by the Eleventh Amendment). Because the individual defendants are RJUHSD school 28 board members or school administrators, they are immune from suits for damages in their official 1 capacities. See Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (“[T]he Eleventh 2 Amendment[] bar[s] . . . claims in federal court against the state officials in their official 3 capacities.”); see also Everett H. v. Dry Creek Joint Elementary Sch. Dist., 5 F. Supp. 3d 1167, 4 1179 (E.D. Cal. 2014) (holding that damages claims against public school district administrators 5 are barred by Eleventh Amendment immunity). 6 Such claims cannot be saved by plaintiffs’ requests for prospective relief because 7 plaintiffs fail to allege that they remain subject to the complained-of policies. The first amended 8 complaint does not allege that DeVault remains a student within the RJUHSD, and it provides 9 several indications that she is no longer a student: it alleges that the 2021-2022 school year was 10 her senior year of high school, that she is now “an adult individual who resides within the 11 RJUHSD,” and that the mask policy caused her to miss both her graduation and the “2022 Senior 12 Ball.” ECF No. 24 at 10, 24-25, 51, 75. The first amended complaint also fails to allege that the 13 mask policy remains in effect, and plaintiffs acknowledge in their opposition that the mask policy 14 was suspended in February 2022. ECF No. 32 at 9.2 15 Plaintiffs argue that their claims for prospective relief are not moot because of the 16 voluntary cessation doctrine. Id. (citing Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013)) 17 (holding that “a defendant cannot automatically moot a case simply by ending its [allegedly] 18 unlawful conduct once sued” because the defendant could simply “pick up where he left off”). 19 This argument has been rejected by the Ninth Circuit in a similar context. See Brach v. Newsom, 20 38 F.4th 6, 9 (9th Cir. 2022) (holding that “the mere possibility that California might again 21 suspend in-person instruction is too remote” for injunctive relief claims to avoid being dismissed 22 as moot). Moreover, the voluntary cessation doctrine does not remedy the fact that plaintiffs are 23 no longer personally subject to the district’s mask policies. See Lighthouse Fellowship Church v. 24 Northam, 20 F.4th 157, 162-64 (4th Cir. 2021) (holding that the voluntary cessation doctrine did 25 not rescue an otherwise moot challenge to a COVID-19 pandemic policy). Plaintiffs’ equitable 26 2 Defendants ask the court to take judicial notice of (1) an RJUHSD enrollment record 27 purporting to show that plaintiff DeVault has not been enrolled within the district since May 27, 2021, and (2) a February 2022 update to the RJUHSD official mask policy. ECF No. 25-2 at 1-3, 28 80, 90. Neither request need be addressed at this time and so both are denied as unnecessary. 1 relief claims are therefore moot, and their official-capacity claims are barred by the Eleventh 2 Amendment. Plaintiffs can proceed only on their claims for damages against the individual 3 defendants in their personal capacities. 4 B. Federal Claims Against Defendants in their Personal Capacities 5 Although the factual allegations in plaintiffs’ first amended complaint are substantially the 6 same as in their original complaint, the legal theories underlying their claims have changed. The 7 first amended complaint alleges that defendants violated plaintiffs’ due process rights under the 8 Fourteenth Amendment insofar as they (1) deprived plaintiffs of their “fundamental right[s] to an 9 in-person, public education and to an education in a safe and healthy environment,” ECF No. 24 10 at 85; (2) interfered with their right to familial association, id. at 105-10; and (3) placed DeVault 11 in danger by requiring her to wear a mask, id. at 110-14. The first amended complaint also 12 alleges that defendants DeLorge and Gayle violated DeVault’s Fourth Amendment right against 13 unreasonable seizures by confiscating her phone. Id. at 114-15. It does not appear to renew 14 plaintiffs’ procedural due process claims.3 15 1. Substantive Due Process 16 Plaintiffs allege that defendants’ implementation of the mask requirement at Antelope 17 High School violated their substantive due process rights under the Fourteenth Amendment. ECF 18 No. 24 at 84.4 The “substantive component” of the “Fourteenth Amendment’s guarantee of ‘due 19 3 Plaintiffs’ 348-page complaint is poorly organized and in places difficult to understand. 20 To the extent plaintiffs attempt to renew procedural due process claims stemming from the lack of an in-person hearing or the lack of notice before implementing the mask mandate, such claims are 21 insufficient for the reasons explained in the September 7, 2022 findings and recommendations. ECF No. 19. As noted there, courts have widely rejected procedural due process challenges to 22 school mask policies like the one at issue. See Branch-Noto v. Sisolak, 576 F. Supp. 3d 790, 803 23 (D. Nev. 2021); Gunter v. N. Wasco Cnty. Sch. Dist. Bd. of Educ., 577 F. Supp. 3d 1141, 1160-61 (D. Or. 2021); cf. Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 441 (9th Cir. 2008) 24 (“[A]lthough it might be preferable for schools to seek parental approval before instituting controversial school policies, and it might be a violation of state law for schools not to do so if a 25 local statute or regulation so dictates, the Due Process Clause in no way requires this.”). 4 Although the first amended complaint also appears to renew plaintiffs’ claims under the 26 Fifth Amendment Due Process clause, see ECF No. 24 at 84, plaintiffs concede in their 27 opposition that the Fifth Amendment Due Process clause does not apply to state and local officials, see ECF No. 32 at 10-11; see Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) 28 (“[T]he Fifth Amendment’s due process clause only applies to the federal government.”). 1 process of law’ . . . forbids the government to infringe certain ‘fundamental’ liberty interests at 2 all, no matter what process is provided, unless the infringement is narrowly tailored to serve a 3 compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). Thus, a “[s]ubstantive due 4 process analysis must begin with a careful description of the asserted right.” Id. 5 As in the prior complaint, plaintiffs contend that DeVault possesses a “fundamental right 6 to an in-person, public education and to an education in a safe and healthy environment.” ECF 7 No. 24 at 85. They allege that defendants infringed that right by requiring DeVault to wear a 8 mask that made it harder to breathe. Id. at 86 & 88. They suggest that this right extends to 9 McGuire because DeVault’s suspension caused McGuire monetary and emotional harm. Id. at 10 89-90. 11 Neither plaintiff possesses such a right under federal law. “Public education is not a 12 ‘right’ granted to individuals by the Constitution.” Plyler v. Doe, 457 U.S. 202, 221 (1982); see 13 also Payne v. Peninsula Sch. Dist., 653 F.3d 863, 880 (9th Cir. 2011) (en banc) (noting that there 14 is “no enforceable federal constitutional right to a public education”). “While parents may have a 15 fundamental right to decide whether to send their child to a public school, they do not have a 16 fundamental right generally to direct how a public school teaches their child.” Fields v. Palmdale 17 Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005) (quoting Blau v. Fort Thomas Pub. Sch. Dist., 401 18 F.3d 381, 395-96 (6th Cir. 2005)). “Due process does not give parents the right to interfere with a 19 public school’s operations because issues such as school discipline, the content of examinations, 20 and dress code are issues of public education generally committed to the control of state and local 21 authorities.” McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 711 (9th Cir. 2019) (internal 22 citations and quotation marks omitted). 23 In light of these precedents, courts have consistently held that neither parents nor students 24 possess a fundamental right against the various actions taken by states and public-school 25 administrators to mitigate the spread of COVID-19, such as temporary remote-learning 26 arrangements and mask requirements for in-person learning. See Branch-Noto v. Sisolak, 576 F. 27

28 Therefore, I will construe such claims as alleging Fourteenth Amendment violations. 1 Supp. 3d 790, 799 (D. Nev. 2021) (“[T]he right to parent as one sees fit does not entitle parents to 2 undermine local public-health efforts during a global pandemic by refusing to have their children 3 comply with a school mask requirement, particularly when they’ve affirmatively chosen that 4 option over the maskless, distance-learning alternative that [the district] also made available.”); 5 Gunter v. N. Wasco Cnty. Sch. Dist. Bd. of Educ., 577 F. Supp. 3d 1141, 1155-56 (D. Or. 2021); 6 Guilfoyle v. Beutner, No. 2:21-CV-05009-VAP (MRWx), 2021 WL 4594780, at *17 n.8 (C.D. 7 Cal. Sept. 14, 2021).5 8 Since plaintiffs fail to allege a violation of a fundamental right, the RJUHSD mask 9 requirement is analyzed under rational basis review. See Gunter, 577 F. Supp. 3d at 1155-56. 10 Under rational basis review, courts ask only whether the defendants’ action “bears a rational 11 relation to a legitimate government objective.” Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 12 461-62 (1988). Laws reviewed under this standard, including rules passed by a school board, are 13 presumed valid. Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198 (1979). 14 Federal courts have consistently held that both distance learning and mask requirements 15 implemented in response to the COVID-19 pandemic satisfy this deferential standard, particularly 16 where, as here, the requirements were implemented pursuant to public health directives of state 17 and national authorities. See Guilfoyle, 2021 WL 4594780, at *14 (finding “a legitimate interest 18 in abating the COVID-19 pandemic” and that “LAUSD’s COVID-19 mitigation measures are 19 related rationally to that legitimate interest because they are consistent with local, state, and 20 national public health orders”); Branch-Noto, 576 F. Supp. 3d at 802 (“[I]t cannot be said that the 21 masking policies are not rationally related to the legitimate government interest of slowing the 22 spread of COVID-19.”). Plaintiffs’ assertions that masks are ineffective against the virus and 23 cause harmful side effects, including by inhibiting breathing, are insufficient to demonstrate that 24 defendants lacked a rational basis for the requirement’s implementation. See Forbes v. Cnty. of 25 San Diego, No. 20-CV-00998-BAS-JLB, 2021 WL 843175, at *5 (S.D. Cal. Mar. 4, 2021) 26 5 Plaintiffs recast their allegations that defendants violated “the Nuremberg Code” as a 27 violation of California state law, rather than—as in their original complaint—a violation of substantive due process. See ECF No. 24 at 17 & 77. Plaintiffs’ state law claims are addressed 28 infra, part D. 1 (explaining that the plaintiff’s “contentions disputing the scientific basis for the Mask Rules are 2 simply not enough to state a plausible clam that the rules are not rationally related to a legitimate 3 government interest”). 4 2. Fourteenth Amendment Right to Familial Association 5 Plaintiffs allege that defendants violated their Fourteenth Amendment right to familial 6 association by refusing to grant DeVault’s request to speak with McGuire before completing the 7 witness statement form on January 20, 2021. ECF No. 24 at 105-110 (citing, inter alia, Smith v. 8 City of Fontana, 818 F.2d 1411, 1418 (9th Cir. 1987)). The Ninth Circuit has held that “parents 9 can challenge under section 1983 a state’s severance of a parent-child relationship as interfering 10 with their liberty interests in the companionship and society of their children.” Smith, 818 F.2d at 11 1418; see also Wallis v. Spencer, 202 F.3d 1126, 1137 n.8 (9th Cir. 2000); Mabe v. San 12 Bernardino Cnty., Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001). Those 13 precedents “establish procedural guarantees for ‘intruding on a parent’s custody of her child,’” 14 such as when Child Protective Services or the police forcibly remove children from a parent’s 15 custody. Branch-Noto, 576 F. Supp. 3d at 802 (quoting Mabe, 237 F.3d at 1106). Where, as 16 here, a minor is voluntarily placed in the custody of the school, the familial association doctrine 17 “ha[s] no application.” Id. (dismissing a claim alleging that the enforcement of a school’s mask 18 mandate interfered with the plaintiff’s right to familial association). Plaintiffs’ allegations “do 19 not come close to the parent-child separation scenarios found to violate this narrow right.” Id. at 20 803. 21 3. State-Created Danger 22 Plaintiffs also allege that defendants deprived plaintiff DeVault of her Fourteenth 23 Amendment rights under the “state-created danger” doctrine. ECF No. 24 at 110. “Under the 24 state-created danger doctrine, a state actor can be held liable for failing to protect a person’s 25 interest in his personal security or bodily integrity when the state actor affirmatively and with 26 deliberate indifference placed that person in danger.” Pauluk v. Savage, 836 F.3d 1117, 1122 27 (9th Cir. 2016). To succeed on a state-created danger claim, plaintiffs must show that defendants 28 “recognize[d] an unreasonable risk and actually intend[ed] to expose the plaintiff to such risks 1 without regard to the consequences to the plaintiff.” Patel v. Kent Sch. Dist., 648 F.3d 965, 975 2 (9th Cir. 2011). 3 Plaintiffs fail to explain how the mask requirement exposed DeVault to a serious risk of 4 harm. The only harm alleged is that wearing a mask caused DeVault to “feel stress and anxiety 5 by restricting her ability to breathe.” Id. at 113. Plaintiffs neither allege that the face masks 6 caused significant harm to any student or employee of the RJUHSD, nor that DeVault had a 7 documented medical condition that would prevent her from wearing a face covering. Even 8 accepting as true the allegation that wearing a protective face mask impaired DeVault’s ability to 9 breathe, defendants did not require DeVault to wear a mask at all; rather, they gave her the choice 10 of whether to wear a mask or attend school remotely. Id. at 23 (providing that DeVault was 11 required to work “from home for the rest of the semester, or until she decides to comply with 12 CDPH guidelines”). 13 As explained supra, pages 8-9, defendants implemented the mask mandate pursuant to a 14 CDPH directive that is rationally related to a legitimate interest in abating the COVID-19 15 pandemic and, consequently, to protecting students from the health consequences of the COVID- 16 19 virus. See ECF No. 25-2 at 31 (explaining that the CDPH directive “is rooted in the scientific 17 evidence available to date and supports twin goals: safe and successful in-person instruction”).6 18 Rather than showing that defendants intended to subject DeVault to a substantial risk of harm, the 19 allegations “support[] the opposite conclusion”—that defendants intended to protect students and 20 staff within RJUHSD from the risks associated with COVID-19. Am.’s Frontline Doctors v. 21 Wilcox, EDCV 21-1243 JGB (KKx), 2021 WL 4546923, at *6 (C.D. Cal. July 30, 2021) 22 (rejecting a state-created danger challenge to a COVID-19 vaccine mandate). 23 6 Indeed, the state-created danger doctrine has more commonly been applied to challenge 24 state activities that increased the risk of contracting COVID-19. See Santa Cruz Homeless Union v. Bernal, 514 F. Supp. 3d 1136, 1143 (N.D. Cal. 2021) (holding that the plaintiffs were “likely to 25 succeed in demonstrating that the City’s dispersal of the homeless persons during the current dire situation of the COVID-19 pandemic puts them at greater risk for COVID-19 than if they remain 26 in the Encampment”); Castillo v. Barr, 449 F. Supp. 3d 915, 922 (C.D. Cal. 2020) (enjoining the 27 defendants to release the plaintiffs from immigration detention due to the risk of contracting COVID-19 in the absence of adequate protective measures, such as social distancing and 28 individual hygienic facilities). 1 4. Fourth Amendment Right Against Unreasonable Seizures 2 Plaintiffs allege that defendants DeLorge and Gayle violated plaintiff DeVault’s Fourth 3 Amendment rights by confiscating her cell phone without probable cause. ECF No. 24 at 114-15. 4 Although the Fourth Amendment applies to searches and seizures conducted by school 5 authorities, “[a] student’s privacy interest is limited in a public school environment where the 6 State is responsible for maintaining discipline, health, and safety.” Bd. of Educ. of Indep. Sch. 7 Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830 (2002); see also Hunter v. Bd. of 8 Trustees of Oroville Union Sch. Dist., 156 F.3d 1237, 1237 (9th Cir. 1998) (“The standard for 9 searches and seizures in the public school context is relaxed.”). In the school context, the Fourth 10 Amendment does not always require individualized suspicion or probable cause; rather, a school 11 official’s actions must be “reasonably related to the objectives of the search [or seizure] and not 12 excessively intrusive in light of the age and sex of the student and the nature of the infraction.” 13 New Jersey v. T.L.O., 469 U.S. 325, 342 (1985); see also Doe ex rel. Doe v. Hawaii Dep’t. of 14 Educ., 334 F.3d 906, 909 (9th Cir. 2003) (“[T]he reasonableness of the seizure must be 15 considered in light of the educational objectives [the official] was trying to achieve.”). 16 Defendants argue both that DeLorge did not seize DeVault’s phone within the meaning of 17 the Fourth Amendment and—if a seizure occurred—that DeLorge acted reasonably. ECF No. 25- 18 1 at 16 (citing Burlison v. Springfield Pub. Schools, 708 F.3d 1034, 1039 (8th Cir. 2013) (“Not 19 every governmental interference with a person’s property constitutes a seizure of that property 20 under the Constitution.”) (internal marks and citations omitted)). “A ‘seizure’ of property occurs 21 where there is some meaningful interference with an individual’s possessory interests in that 22 property.” United States v. Jacobsen, 466 U.S. 109, 113 (1984). 23 According to the first amended complaint, defendant DeLorge confiscated DeVault’s cell 24 phone for approximately thirty minutes—from 9:00 a.m., when DeLorge escorted DeVault to 25 Gayle’s office, until 9:30 a.m., when she sent DeVault home with McGuire. See ECF No. 24 at 26 17-21. Given that DeLorge deprived DeVault of possession and use of her phone, if only briefly, 27 she likely effected a seizure. However, it is unnecessary to decide that question because 28 plaintiffs’ allegations fail to show that any such seizure contravened the Fourth Amendment. 1 Defendants DeLorge and Gayle had a reasonable interest in maintaining order as they spoke with 2 DeVault’s mother on the phone and obtained a written statement from DeVault. Id. The seizure 3 was not especially intrusive: plaintiffs do not allege that defendants searched, damaged, or 4 refused to return the phone upon releasing DeVault to McGuire. See id.; T.L.O., 469 U.S. at 342 5 (weighing the intrusiveness of the search or seizure against the officials’ objectives).7 In the 6 absence of allegations that defendants acted unreasonably, the first amended complaint fails to 7 state a claim under the Fourth Amendment. Cf. Smith v. McGlothlin, 119 F.3d 786, 788 (9th Cir. 8 1997) (“[A] student is required to be on school premises, subject to the direction of the school 9 authorities, during the course of the schoolday.”).8 10 C. Federal Claims Against Defendants in their Supervisory Capacities 11 Plaintiffs also allege that certain defendants are liable for the above-discussed federal-law 12 violations in their supervisory capacities—both under a respondeat superior theory and for 13 failures to supervise and train. ECF No. 24 at 96-104. “There is no respondeat superior liability 14 under § 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). “[A] plaintiff may state a 15 claim against a supervisor for deliberate indifference based upon the supervisor’s knowledge of 16 and acquiescence in unconstitutional conduct by his or her subordinates.” Starr v. Baca, 652 F.3d 17 1202, 1207 (9th Cir. 2011); see also Flores v. County of Los Angeles, 758 F.3d 1154, 1159 (9th 18 Cir. 2014) (holding that a claim for failure to train requires allegations showing that a supervisor 19 “was deliberately indifferent to the need to the need to train subordinates, and the lack of training 20 actually caused [a] constitutional harm or deprivation of rights”). Because the first amended 21 complaint fails to sufficiently allege any violation of plaintiffs’ constitutional rights, see supra, 22

23 7 The only apparent consequence of the alleged seizure was that DeVault could not call McGuire herself. The first amended complaint also suggests that by demanding a witness 24 statement without allowing DeVault to contact McGuire, DeLorge infringed DeVault’s Fifth Amendment right against self-incrimination. See ECF No. 24 at 19. However, “a violation of the 25 constitutional right against self-incrimination occurs only if one has been compelled to be a witness against [her]self in a criminal case,” Chavez v. Martinez, 538 U.S. 760, 770 (2003), and 26 plaintiffs do not allege that DeVault has been subjected to criminal prosecution. 27 8 Because plaintiffs fail to state a claim under the Fourth, Fifth, or Fourteenth Amendments, I decline to address defendants’ arguments that they are entitled to qualified 28 immunity. 1 page 6-12, it also fails to state a claim for failure to supervise or train. 2 D. State Law Claims 3 Plaintiffs’ nine remaining claims arise under state law. See ECF No. 24 at 23-81. The 4 complaint does not establish diversity of citizenship, and plaintiffs have not alleged a cognizable 5 federal claim. See 28 U.S.C. §§ 1331, 1332; see also Bautista v. Pan Am. World Airlines, Inc., 6 828 F.2d 546, 552 (9th Cir. 1987) (holding that the complaint must specifically allege diverse 7 citizenship of all parties to invoke diversity jurisdiction). Consequently, there is no reason to 8 exercise supplemental jurisdiction over plaintiffs’ state law claims, and those claims should also 9 be dismissed. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual 10 case in which all federal-law claims are eliminated before trial, the balance of factors to be 11 considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and 12 comity—will point toward declining to exercise jurisdiction over the remaining state-law 13 claims.”); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless decisions 14 of state law should be avoided both as a matter of comity and to promote justice between the 15 parties, by procuring for them a surer-footed reading of the applicable law.”). I recommend the 16 court decline to exercise supplemental jurisdiction over plaintiffs’ state claims. 17 Conclusion 18 I recommend that the first amended complaint be dismissed without leave to 19 amend. Plaintiffs dropped several claims previously found insufficient, but otherwise failed to 20 improve their allegations. Neither their first amended compliant nor their opposition to 21 defendants’ motion to dismiss provide reasons to believe that further amendment could cure the 22 deficiencies identified herein. See California Architectural Bldg. Prod. v. Franciscan Ceramics, 23 818 F.2d 1466, 1472 (9th Cir. 1988) (“Valid reasons for denying leave to amend include undue 24 delay, bad faith, prejudice, and futility.”); cf. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) 25 (en banc) (holding that district courts must afford pro se litigants an opportunity to amend when it 26 appears possible that they can correct the deficiencies in their complaints). 27 Accordingly, it is hereby RECOMMENDED that: 28 1. Defendants’ motion to dismiss, ECF No. 25, be granted. 1 2. Plaintiffs’ first amended complaint, ECF No. 24, be dismissed without leave to amend. 2 3. The Clerk of Court be directed to close the case. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 | after being served with these findings and recommendations, any party may file written 6 | objections with the court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 8 | objections shall be served and filed within fourteen days after service of the objections. The 9 | parties are advised that failure to file objections within the specified time may waive the right to 10 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 11 | v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 3 IT IS SO ORDERED. 14 ( ie — Dated: _ June 5, 2023 q-—— 15 JEREMY D. PETERSON 16 UNITED STATES MAGISTRATE JUDGE

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