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Gallegos v. Adams County School District 14

United States District Court, D. Colorado

September 25, 2017

MARK GALLEGOS, an individual, LISA GALLEGOS, an individual, and TYLER GALLEGOS, an individual, Plaintiffs,


          Nina Y. Wang United States Magistrate Judge

         Magistrate 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.


         Plaintiffs Mark Gallegos and Lisa Gallegos and their son Tyler Gallegos, [1] 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.[2] 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].

         On 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 id.

         The 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].

         On 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].

         This 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].

         On 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.


         I. Fed.R.Civ.P. 12(b)(1)

         Federal 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).

         II. Fed.R.Civ.P. 12(b)(6)

         Under 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).

         Rather, “[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).

         III. Fed.R.Civ.P. 15(a)

         This 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).


         Defendants 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.

         I. Claim I: Title II Discrimination

         A. Applicable Law

         Plaintiffs 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.”).

         B. Application

         Defendants 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].

         This 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.

         Plaintiffs 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.[3] 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)).

         Additionally, 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 Discrimination.[4]

         II. Claim II: Section 1983 Discrimination

         A. Applicable Law

         As with 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).

         The 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 similarlyā€¯) (emphasis in original). However, some evidence of intentional discrimination against a particular class of persons must ...

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