FILED
NOT FOR PUBLICATION MAR 01 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUZ AL-RIFAI; et al., No. 11-15361
Plaintiffs - Appellants, D.C. No. 2:10-cv-02526-MCE-
CMK
v.
WILLOWS UNIFIED SCHOOL MEMORANDUM *
DISTRICT; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted February 13, 2012 **
San Francisco, California
Before: TASHIMA and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
Plaintiffs appeal the district court’s dismissal with prejudice of their
complaint against Willows Unified School District and three district employees.
Plaintiffs allege violations of the First and Fourteenth Amendments, with the
remedies provided by 42 U.S.C. § 1983, including: (1) equal protection on the
basis of race, religion, and national origin; (2) equal protection on the basis of sex;
(3) freedom of speech and religion; and (4) retaliatory treatment based on the
exercise of speech. Plaintiffs also allege impermissible sexual harassment in
violation of Title IX and four California state law violations: negligence, negligent
training and supervision, and intentional and negligent infliction of emotional
distress.
Willows Unified School District, a California school district, is a state
agency for purposes of Eleventh Amendment immunity. Belanger v. Madera, 963
F.2d 248, 251-53 (9th Cir. 1992). Furthermore, the three school administrators
sued in their “official capacities” are immune from suit for both federal and state
law claims. Id. at 254; see also Gilbreath v. Cutter Biological, Inc., 931 F.2d
1320, 1327 (9th Cir. 1991). Therefore, we AFFIRM the district court’s order
insofar as it dismissed all claims against the school district (except the Title IX
claim) and Plaintiffs’ “official capacity” claims with prejudice.
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As Plaintiffs concede, Title IX does not create a private right of action
against school officials, teachers, and other individuals who are not direct
recipients of federal funding. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,
257 (2009). Accordingly, we AFFIRM the district court’s order dismissing the
Title IX claim against the individual Defendants with prejudice.
As against Willows Unified School District, Plaintiffs have not properly
pled a claim under Title IX because Plaintiffs fail to allege sexual harassment that
is “so severe, pervasive, and objectively offensive” that it deprived Luz and Salam
of “access to the educational opportunities or benefits provided by [Willows
School District].” See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650-52
(1999). The specific allegations amount to simple teasing and name-calling–for
which Title IX damages are not available. See id. at 652. We therefore AFFIRM
the district court’s order dismissing Plaintiffs’ Title IX claim against Willows
School District.
The district court erred in holding that the individual defendants were only
sued in their “official capacities.” Plaintiffs, in the § 1983 and state law portions of
the Second Amended Complaint, request damages “against all Defendants in their
individual capacities.” Moreover, Plaintiffs allege that Defendants were “acting
under color of State and Local Law” and discriminated against Plaintiffs “because
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of Plaintiffs’ ethnic origins, race and religious beliefs.” Therefore, Plaintiffs’
claims against the individual Defendants were “personal capacity” claims and
should have been analyzed as such by the district court. Ashker v. Cal. Dep’t of
Corr., 112 F.3d 392, 395 (9th Cir. 1997); see also Romano v. Bible, 169 F.3d 1182,
1185-86 (9th Cir. 1999).
Even though the district court should have analyzed the remaining federal
claims as “personal capacity” claims, Plaintiffs still fail to state a claim.
Plaintiffs are correct that a student can bring a § 1983 sex discrimination
claim based on a school administrator’s failure to investigate peer-to-peer
harassment. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th
Cir. 2003). Plaintiffs have not, however, pled any facts that suggest that the
individual Defendants discriminated against Plaintiffs Luz and Salam with an
impermissible motive or acted with gender animus in failing to respond to the
gender oriented name calling and teasing that allegedly occurred. See id at 1135.
Plaintiffs’ general allegation that Luz and Salam were subjected to unspecified
unwanted sexual touching is impermissibly vague. Similarly, Plaintiffs fail to
allege facts showing that the individual Defendants intentionally discriminated
against Plaintiffs on the basis of their race, religion, or national origin. See
Monteiro v. Tempe Union High Schl. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998).
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Therefore, we AFFIRM the district court’s order dismissing Plaintiffs’
discrimination claims against the individual Defendants.
Our cases require that Plaintiffs be given an opportunity to amend because:
(1) there is no evidence of any undue delay, bad faith, dilatory motive, or prejudice
to the opposing party; (2) Plaintiffs have not had an opportunity to cure previously
identified deficiencies in their complaint; and (3) it is not clear that the Title IX and
§ 1983 discrimination claims could not be saved by amendment. See Lipton v.
Pathogenesis Corp., 284 F.3d 1027, 1038 (9th Cir. 2002); Moore v. Kayport
Package Express, 885 F.2d 531, 538 (9th Cir.1989). Accordingly, we REVERSE
the district court order insofar as it denies Plaintiffs leave to amend the Title IX
claim and the § 1983 sex and race, religion, national origin discrimination claims.
Lastly, the district court erred in dismissing Plaintiffs’ state law claims
against the individual Defendants with prejudice because the Eleventh Amendment
does not bar pendent state claims by Plaintiffs against state officials acting in their
individual capacities. See Pena v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992).
Accordingly, we REVERSE the district court’s order dismissing the state law
claims with prejudice and REMAND those claims to be considered as if the
individual Defendants were sued in their personal capacities.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
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