United States District Court, D. Colorado
MARK GALLEGOS, an individual, LISA GALLEGOS, an individual, and TYLER GALLEGOS, an individual, Plaintiffs,
ADAMS COUNTY SCHOOL DISTRICT 14 and ADAMS CITY HIGH SCHOOL, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. Wang United States Magistrate Judge
Judge Nina Y. Wang This matter comes before the court on
Defendants Adams County School District 14 (the
“District”) and Adams City High School's
(“ACHS”) (collectively, “Defendants”)
Motion to Dismiss Second Amended Complaint (“Motion to
Dismiss”). [#30, filed March 22, 2017]. Also before the
court is Plaintiffs' Motion to Amend Complaint
(“Motion to Amend”). [#42, filed May 8, 2017].
The Motions were referred to the undersigned Magistrate Judge
pursuant to the Order Referring Case dated March 10, 2017
[#21] and the memoranda dated March 23, 2017 [#31] and May 8,
2017 [#43]. After carefully reviewing the Motions and related
briefing, the entire case file, and the applicable case law,
I respectfully recommend that the Motion to Dismiss be
GRANTED and the Motion to Amend be DENIED.
AND FACTUAL BACKGROUND
Mark Gallegos and Lisa Gallegos and their son Tyler Gallegos,
along with daughter Taia Gallegos, initiated this civil
action by filing a Complaint in the District Court for Adams
County, Colorado on September 26, 2016. [#3]. Plaintiffs
named as Defendants the District and ACHS, along with six
individuals, and asserted eight statutory, constitutional,
and common law claims for relief arising from allegations
that the District and certain of its employees had
discriminated against Tyler Gallegos and denied him an
adequate public education during the school years of 2011
through spring of 2015, when Tyler was a student at
ACHS. See Id. On or about January 10,
2017, Plaintiffs filed an Amended Complaint in state court.
See [#4]. Plaintiffs served Defendants with the
Summons and Amended Complaint the following day. See
[#1-6]. On February 1, 2017, Defendants removed the action to
this District, asserting jurisdiction pursuant to 28 U.S.C.
§ 1331. See [#1].
March 16, 2017, with the consent of Defendants and leave of
court, Plaintiffs filed a Second Amended Complaint that
omitted the individuals as defendants and Taia Gallegos as a
plaintiff. [#27]. See also [#22, #26]. The Second
Amended Complaint asserts as claims one and two that
Defendants discriminated against Tyler because he is
Hispanic, in violation of Title II of the Civil Rights Act of
1964, (“Title II”), 42 U.S.C. § 2000(a) and
42 U.S.C. § 1983, and asserts as claim three that
Defendants failed to “develop, implement, and maintain
a Section 504 assistance plan” to accommodate
Tyler's diagnosed disabilities of anxiety disorder and
depression, in violation of the Americans with Disabilities
Act, 42 U.S.C. §12101, et. seq.
(“ADA”) and the Rehabilitation Act of 1973,
(“Rehabilitation Act”), 29 U.S.C. §701,
et. seq. See generally [#27]. Plaintiffs
seek monetary damages of an unspecified amount. See
supporting allegations are as follows. Prior to entering
ACHS, Tyler was evaluated for, and it was determined he had,
disabilities that necessitated the implementation of an
individual education plan under Section 504 of Title II
(“504 Plan”), and that the 504 Plan would be
updated annually. [#27 at ¶ 7]. Such a plan was then
developed and implemented for Tyler. The 504 Plan was not
maintained, however, once Tyler entered ACHS. Additionally,
Tyler was subjected to racial and sexual discrimination in
that he was “falsely…accused by District
employees of criminal acts, … [and of] being a
homosexual, ” and was singled out for discipline
because he is Hispanic. [Id. at ¶ 9]. During
the fall of 2014, members of The Denver Post
(“Post”), with Defendants' permission,
visited ACHS and interviewed and filmed students, including
Tyler, to develop a written and filmed series titled,
“Everything Matters.” [Id. at ¶
10]. The Post did not obtain permission from parents of the
students prior to the interviews or prior to publishing the
series. [Id.] In early 2015, Plaintiffs filed claims
with the Colorado Civil Rights Division complaining of racial
and sexual discrimination by the District and its employees.
[Id. at ¶ 11]. Plaintiffs then filed a claim
for retaliation against the District. As a result of the
complaints, the District “was required to carry out
certain remedial actions…but has failed to fully take
care of all responsibilities to which it agreed.”
[Id.] Tyler was subsequently falsely accused of
criminal misconduct, accused of breaking certain rules of the
ACHS football team, removed from the team, suspended from
classes, suspended from ACHS altogether, and placed in
isolation separate from the rest of ACHS's school
population. Eventually, Defendants required Tyler to complete
his high school diploma by alternative means in the spring of
2015. [Id. at ¶ 12]. Plaintiffs suffered
financial losses and loss of familial relationships as a
direct result of these actions, and Tyler suffered
“injuries, damages, and emotional losses.”
[Id. at ¶¶ 13, 14].
March 22, 2017, Defendants filed the pending Motion to
Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). [#30]. They argue that the court should dismiss
the Title II claim because that statute does not apply to
school districts and does not authorize damages, and the
§ 1983 claim fails because Plaintiffs do not allege
similarly situated non-Hispanic students were treated
differently. Defendants argue the ADA and Rehabilitation Act
claim fails because Plaintiffs do not allege the District
discriminated against Tyler due to his disability, and,
rather, Plaintiffs allege the District failed to properly
maintain the 504 Plan, and thus the cause of action should be
brought pursuant to the Individuals with Disabilities in
Education Act. [#30].
court originally set a Scheduling Conference to be held March
24, 2017, and continued the Scheduling Conference to April 4,
2017 at the Parties' request. See [#16]. On
March 31, 2017, the Parties filed a Joint Motion to Stay
discovery and associated deadlines pending resolution of the
Motion to Dismiss. See [#33]. This court granted the
motion in part and vacated the Scheduling Conference. [#36].
April 12, 2017, Plaintiffs filed a Response to the Motion to
Dismiss generally opposing Defendants' contentions, but
asserting in the alternative that the court should allow
Plaintiffs to amend the pleading rather than dismiss the
action. See [#37 at 7-8]. Plaintiffs attached a
proposed Third Amended Complaint to their Response.
See [#37-1]. On May 8, 2017, Plaintiffs filed the
pending Motion to Amend, asserting that they were filing it
“in the alternative to tie into the arguments [they]
have made in their Response to the pending Motion to
Dismiss.” [#42]. On May 9, 2017, Defendants filed a
Reply in support of the Motion to Dismiss. [#44]. On May 16,
2017, Defendants filed a Response to the Motion to Amend,
and, on May 23, 2017, Plaintiffs filed a Reply. [#47]. The
Motions are now ripe for determination.
courts, as courts of limited jurisdiction, must have a
statutory basis for their jurisdiction. See Morris v.
City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994)
(citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th
Cir. 1994)). Pursuant to Federal Rule of Civil Procedure
12(b)(1), the court may dismiss a complaint for lack of
subject matter jurisdiction. The determination of a
court's jurisdiction over subject matter is a question of
law. Madsen v. United States ex. U.S. Army, Corps of
Engineers, 841 F.2d 1011, 1012 (10th Cir. 1987).
“A court lacking jurisdiction cannot render judgment
but must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is
lacking.” Basso v. Utah Power & Light Co.,
495 F.2d 906, 909 (10th Cir. 1974).
Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion
under Rule 12(b)(6), the court must “accept as true all
well-pleaded factual allegations … and view these
allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). However,
a plaintiff may not rely on mere labels or conclusions,
“and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
“[t]o survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plausibility refers “to the scope of the allegations in
a complaint: if they are so general that they encompass a
wide swath of conduct, much of it innocent, then the
plaintiffs ‘have not nudged their claims across the
line from conceivable to plausible.'” Robbins
v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)
(citation omitted). “The burden is on the plaintiff to
frame ‘a complaint with enough factual matter (taken as
true) to suggest' that he or she is entitled to
relief.” Id. The ultimate duty of the court is
to “determine whether the complaint sufficiently
alleges facts supporting all the elements necessary to
establish an entitlement to relief under the legal theory
proposed.” Forest Guardians v. Forsgren, 478
F.3d 1149, 1160 (10th Cir. 2007).
court has not yet held a Scheduling Conference or entered a
Scheduling Order to govern the pre-trial progress of this
case. Therefore, this court considers the Motion to Amend
within the confines of Federal Rule of Civil Procedure 15(a)
only. See Fernandez v. Bridgestone/Firestone, Inc.,
105 F.Supp.2d 1194, 1195 (D. Colo. 2000) (applying only Rule
15 when the deadline set for amendment in the Scheduling
Order has not yet passed). Rule 15(a) provides that leave to
amend “shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). The court may refuse
leave to amend upon a showing of undue delay, undue prejudice
to the opposing party, bad faith or dilatory motive, failure
to cure deficiencies by amendments previously allowed, or
futility of amendment. Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir. 1993). A general presumption
exists in favor of allowing a party to amend its pleadings,
see Foman v. Davis, 371 U.S. 178, 182 (1962), and
the non-moving party bears the burden of showing that the
proposed amendment is improper. Jefferson County Sch.
Dist. No. R-1, 175 F.3d at 859. Whether to allow
amendment is within the trial court's discretion.
Burks v. Oklahoma Publ'g Co., 81 F.3d 975,
978-79 (10th Cir. 1996).
argue that the First and Second Claims for Relief are
insufficiently pled and should be dismissed pursuant to a
Rule 12(b)(6) standard. Defendants argue that the court lacks
subject matter jurisdiction to consider the Third Claim for
Relief, and also that is similarly insufficiently pled.
Defendants further oppose the Motion to Amend on the bases of
futility and undue delay. A proposed amendment is futile if
the complaint, as amended, would be subject to dismissal.
Jefferson County Sch. Dist. No. R-1 v. Moody's
Investor's Services, Inc., 175 F.3d 848, 859 (10th
Cir. 1999). Accord Conkleton v. Zavaras, No.
08-cv-02612-WYD-MEH, 2010 WL 6089079, at *3 (D. Colo. Oct. 6,
2010) (“If a party opposes a motion to amend on the
grounds of futility, the court applies the same standard to
its determination of the motion that governs a motion to
dismiss under Fed.R.Civ.P. 12(b)(6).”). Given the
related and similar nature of the arguments raised in each
Motion and the law applicable to the disposition of each, I
address the Motions pari passu.
Claim I: Title II Discrimination
allege that Tyler was unlawfully discriminated against
because he is of Hispanic heritage. [#27 at ¶ 18]. As
relief, Plaintiffs seek only damages, and not injunctive
relief. [Id. at 7]. Section 2000a of Title 42
prohibits discrimination or segregation on the ground of
race, color, religion, or national origin with respect to
“the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any
place of public accommodation.” 42 U.S.C. §
2000a(a). The statute defines “place of public
accommodation” as “[e]stablishments affecting
interstate commerce or supported in their activities by State
action, ” including but not limited to lodgings,
facilities principally engaged in selling food for
consumption on the premises, gasoline stations, and places of
exhibition or entertainment. Id. at § 2000a(b).
The “overriding purpose of Title II [is] ‘to
remove the daily affront and humiliation involved in
discriminatory denials of access to facilities ostensibly
open to the general public.'” Daniel v.
Paul, 395 U.S. 298, 307-308 (1969) (citation omitted). A
Title II suit is “private in form only, ” and a
plaintiff pursuing a Title II claim cannot recover damages.
Newman v. Piggie Park Enterprises, Inc., 390 U.S.
400, 401-02 (1968) (“When the Civil Rights Act of 1964
was passed, it was evident that enforcement would prove
difficult and that the Nation would have to rely in part upon
private litigation as a means of securing broad compliance
with the law…If [plaintiff] obtains an injunction, he
does so not for himself alone but also as a ‘private
attorney general, ' vindicating a policy that Congress
considered of the highest priority.”).
do not contest that Tyler is a member of a protected class
under Title II, but argue rather that Plaintiffs' claim
cannot survive as pled because a public school is not a place
of public accommodation and, even if the court finds that a
public school satisfies the definition, damages are not
available. [#30 at 4]. Plaintiffs respond that the District,
as a Colorado school district, “is subject both to
Colorado state law and federal law, ” and that the
court should apply the definition of “public
accommodation” as provided in the Colorado
Anti-Discrimination Act (“CADA”), Colo. Rev.
Stat. §24-34-610(1). [#37 at 3]. Plaintiffs further
argue that they are not limited to injunctive relief because
they are suing the District not for “facility
non-compliance with the Act, ” but for “the
unlawful discriminatory actions of its employees,
contractors, or both.” [Id. at 5]. Defendants
assert in reply that the claim is brought under Title II, and
the definition provided in that statute, rather than CADA,
should apply. Finally, they assert that Plaintiffs
misconstrue the availability of damages in a Title II action.
[#44 at 2-4].
court addresses the matter of damages first because it is
dispositive. It is undisputed that Plaintiffs seek only
damages in this action. [#27 at 7; #37 at 4-5]. Plaintiffs
rely on Fisher v. Shamburg, 624 F.2d 156 (10th Cir.
1980) for the contention that they can recover damages from
the District because their allegations center on
discrimination exacted by the District's employees and/or
contractors, not the District itself. This court is not
persuaded by that argument. The court's reading of
Fisher indicates that there is an exception to
injunctive relief as the exclusive remedy for a Title II
violation where the perpetrators of harm are unaffiliated
with the place of public accommodation. Id. at 161
(“the Court held that the legislative history of Title
II makes it clear that the exclusivity of the Act's
injunctive remedy applies only to actions against the owners
and proprietors of public accommodations and not outsiders
such as the defendants.”) (citing United States v.
Johnson, 390 U.S. 563 (1968)). The Fisher court
explained that “[t]he rationale for limiting the remedy
to injunctive relief was to provide the proprietor with a
judicial determination of whether his facility was covered by
Title II before exposing him to civil or criminal
liability.” Id. Therefore, injunctive relief
provides real-world effect when applied to
“proprietors, owners, and their personnel, ” but
constitutes only a “hollow remedy” when used to
deter outsiders from engaging in discriminatory practices
aimed at preventing protected classes from using facilities
covered under Title II.
allege that District employees discriminated against Tyler
Gallegos. [#27 at ¶¶ 3, 9, 12]. Even assuming that
ACHS is a place of public accommodation, their allegations
implicate the school's personnel, and are analogous, for
instance, to allegations that a restaurant is in violation of
Title II because the waitress refused service to a patron of
Hispanic origin. Injunctive relief against the District is
not a “hollow remedy” because the District has
the authority to implement a court order as to its
employees. Accordingly, this court agrees with
Defendants that Plaintiffs may not recover damages under this
claim as pled, and they do not ask for injunctive relief.
See Macer v. Bertucci's Corp., No. 13-CV-2994
(JFB)(ARL), 2013 WL 6235607, at *6-7 (E.D.N.Y. Dec. 3, 2013)
(granting motion to dismiss Title II claim, in the
alternative, because plaintiff sought only damages) (citing
Henry v. Lucky Strike Entertainment, LLC, No.
10-CV-03682 (RRM)(MDG), 2013 WL 4710488, at *13 (E.D.N.Y.
Sept. 1, 2013) (granting summary judgment on claims under
Section 2000a for monetary relief, because statute's only
remedy is injunctive relief); Ajuluchuku v. Bank of Am.
Corp., Nos. 3:06-cv-60, 3:06-cv-122, 3:06-cv-228,
3:06-cv-229, 3:06-cv-230, 2007 WL 952015, at *2 (W.D. N.C.
March 27, 2007)).
although not argued by Defendants, standing to pursue a claim
for injunctive relief requires a plaintiff to
“demonstrate a good chance of being likewise injured in
the future.” Facio v. Jones, 929 F.2d 541, 544
(10th Cir. 1991). Accord Barney v. Pulsipher, 143 F
.3d 1299, 1306 n.3 (10th Cir. 1998). Tyler obtained his high
school diploma in spring 2015 and no longer attends ACHS or
any other school within the District. [#27 at ¶ 12].
Given this fact, and absent allegations of future injury,
Plaintiffs appear to lack standing to pursue injunctive
relief. Accordingly, I respectfully recommend that the court
grant the Motion to Dismiss as to Claim I: Title II
Claim II: Section 1983 Discrimination
the First Claim for Relief, Plaintiffs assert that Tyler
Gallegos was discriminated against because he is of Hispanic
heritage. Section 1983 of Title 42 of the United States Code
allows an injured person to seek damages for the violation of
his or her federal rights against a person acting under color
of state law. See 42 U.S.C. § 1983; see
also Filarsky v. Delia, 566 U.S. 377, 383 (2012). To
assert a claim under § 1983, Plaintiff must show (1)
that he had a right secured by the Constitution and laws of
the United States that was violated (2) by a person who acted
under color of state law. Hall v. Witteman, 584 F.3d
859, 864 (10th Cir. 2009).
Equal Protection Clause requires that no state deny any
person within its jurisdiction the equal protection of the
laws. U.S. Const. amend. XIV. An equal protection violation
occurs when the government treats someone differently than
another who is similarly situated. Penrod v.
Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996) (citing
City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985)). “The Equal Protection Clause does not
forbid classifications. It simply keeps governmental
decisionmakers from treating differently persons who are
in all relevant respects alike.” Taylor v.
Roswell Indep. School Dist.,713 F.3d 25, 53 (10th Cir.
2013) (quoting Nordlinger v. Hahn,505 U.S. 1, 10
(1992) (emphasis in original)). Courts considering an equal
protection challenge generally query first whether the
challenged state action intentionally discriminates between
groups of persons. SECSYS, LLC v. Vigil, 666 F.3d
678, 685 (10th Cir. 2012) (citations omitted). Second,
“after an act of intentional discrimination against a
particular group is identified either by presumption or
evidence and inference, courts ask whether the state's
intentional decision to discriminate can be justified by
reference to some upright government purpose.”
Id. at 686 (“[t]he law…may take
cognizance of meaningful distinctions between
individuals without violating the constitutional command of
treating similarly situated persons similarly”)
(emphasis in original). However, some evidence of intentional
discrimination against a particular class of persons must ...