MEMORANDUM DECISION AND ORDER .GRANTING IN PART WITH LEAVE TO AMEND, GRANTING PART WITHOUT LEAVE TO AMEND, AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS (Docs. 8 & 15) AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO STRIKE (Doc. 12)

Plaintiff C.B., a minor, has filed a Complaint against Defendants Sonora School District; Karen Sinclair; City of Sonora; Chief of Police Mace McIntosh; Officer Hal Prock; and Does 1-10. As facts com mon to all causes of action, the Complaint alleges:

The Complaint alleges that Plaintiff filed California Tort Claims with the Sonora School District and the City of Sonora and that both claims were rejected. The Complaint alleges the following causes of action:

The Complaint prays for compensatory, incidental, general and special, and punitive damages, for civil penalties, and attorneys’ fees.

Defendants Sonora School District and Karen Sinclair (collectively District Defendants) move to dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) on the grounds that (1) the Court lacks subject matter jurisdiction over Plaintiffs federal claims because Plaintiff has failed to exhaust administrative remedies; (2) Plaintiffs state law claims are barred by Plaintiffs failure to exhaust administrative remedies pursuant to the California Code of Regulations; (3) federal law precludes Plaintiffs tort claim against the District Defendants; (4) Plaintiffs tort claim is barred by California Government Code § 820.2; (5) the Complaint fails to plead facts stating any claim for relief; (6) the Complaint fails to plead facts establishing a prima facie case under the Unruh Civil Rights Act; (7) Plaintiff must elect one remedy under either California Civil Code §§ 52 or 54.3; (8) the Complaint fails to plead facts establishing intentional dis crimination; (9) the Complaint fails to plead facts establishing a prima facie claim of intentional infliction of emotional distress; (10) the Complaint fails to plead facts establishing prima facie claims of violation of § 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, or 42 U.S.C. § 1983 ; and (11) Defendant Sinclair is entitled to qualified immunity from liability. Alternatively, the District Defendants move for a more definite statement.

The District Defendants also move pursuant to Rule 12(f) to strike the punitive damages allegations and prayer for punitive damages.

Defendants City of Sonora, Chief of Police Mace McIntosh, and Officer Hal Prock (collectively the City Defendants) move to dismiss the Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted and on the ground of qualified immunity from liability. Alternatively, the City Defendants move for a more definite statement.

A. GOVERNING STANDARDS.

1. Motion to Dismiss for Lack of Subject Matter Jurisdiction.

In the context of IDEA cases, the Ninth Circuit recognizes the requirement of exhaustion of administrative remedies as jurisdictional in nature. See Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047 (9th Cir.2002), Dreher v. Amphitheater Unif. Sch. Dist., 22 F.3d 228, 231 (9th Cir.1994).

Federal subject matter jurisdiction must exist at the time an action is commenced. See Morongo Band of Mission Indians v. California State Board of Equalization, 858 F.2d 1376, 1380 (9th Cir.1988), cert. denied, 488 U.S. 1006 , 109 S.Ct. 787 , 102 L.Ed.2d 779 (1989). Dismissal is appropriate when the district court lacks subject matter jurisdiction over a claim. Rule 12(b)(1), Federal Rules of Civil Procedure. Since subject matter jurisdiction is a threshold issue which goes to the power of the court to hear a case, a Rule 12(b)(1) challenge should be decided before other grounds for dismissal, because they will become moot if dismissal for lack of jurisdiction is granted. See Alvares v. Erickson, 514 F.2d 156, 160 (9th Cir.1975), cert. denied, 423 U.S. 874 , 96 S.Ct. 143 , 46 L.Ed.2d 106 (1975).

A federal court is presumed to lack subject matter jurisdiction until the contrary affirmatively appears. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221 , 1225 (9th Cir.1989). Although the defendant is the moving party on a motion to dismiss, the plaintiff has the burden of establishing subject matter jurisdiction because plaintiff is the party invoking the court’s jurisdiction. Id. Under a Rule 12(b)(1) motion attacking a complaint on its face, the court must consider the allegations of the complaint as true. Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir.1977). An action should not be dismissed for lack of subject matter jurisdiction without giving the plaintiff an opportunity to amend unless it is clear that the jurisdictional deficiency cannot be cured by amendment. May Dept. Store v. Graphic Process Co., 637 F.2d 1211, 1216 (9th Cir.1980).

2. Motion to Dismiss for Failure to State a Claim.

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a cognizable legal theory or where the complaint presents a cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir.1984). In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the truth of all factual allegations and must construe all inferences from them in the light most favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir.2003). “A district court should grant a motion to dismiss if plaintiffs have not pled ‘enough facts to state a claim to relief that is plausible on its face.’ ” Williams v. Gerber Products Co., 523 F.3d 934, 938 (9th Cir.2008), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 , 127 S.Ct. 1955 , 167 L.Ed.2d 929 (2007). “ ‘Factual allegations must be enough to raise a right to relief above the speculative level.’ ” Id. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his ‘entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic, id. at 555, 127 S.Ct. 1955 . A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556 , 127 S.Ct. 1955 . The plausibility standard is not akin to a “probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully, Id. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id. at 557 , 127 S.Ct. 1955 . In Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009), the Supreme Court explained:

Immunities and other affirmative defenses may be upheld on a motion to dismiss only when they are established on the face of the complaint. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.1999); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir.1980) When ruling on a motion to dismiss, the court may consider the facts alleged in the complaint, documents attached to the complaint, documents relied upon but not attached to the complaint when authenticity is not contested, and matters of which the court takes judicial notice. Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir.1998).

3. Motion for More Definite Statement.

“Under the liberal pleading standards, ‘pleadings in federal courts are only required to fairly notify the opposing party of the nature of the claim.’ ” City of South Pasadena v. Slater, 56 F.Supp.2d 1095, 1105 (C.D.Cal.1999). Federal Rule of Civil Procedure 12(e) provides:

A Rule 12(e) motion for a more definite statement must be considered in light of Rule 8’s liberal pleading standards in federal court. See, e.g., Bureerong v. Uvawas, 922 F.Supp. 1450, 1461 (C.D.Cal.1996).

A Rule 12(e) motion is proper only if the complaint is so indefinite that the defendant cannot ascertain the nature of the claim being asserted, i.e., so vague that the defendant cannot begin to frame a response. See Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F.Supp. 940, 949 (E.D.Cal.1981). The Court must deny the motion if the complaint is specific enough to notify defendant of the substance of the claim being asserted. See Bureerong, 922 F.Supp. at 1461 ; see also San Bernardino Pub. Employees Ass’n v. Stout, 946 F.Supp. 790, 804 (C.D.Cal.1996) (“A motion for a more definite statement is used to attack unintelligibility, not mere lack of detail, and a complaint is sufficient if it is specific enough to apprise the defendant of the substance of the claim asserted against him or her.”).

The Court may also deny the motion if the detail sought by a motion for more definite statement is obtainable through discovery. See Davison v. Santa Barbara High Sch. Dist., 48 F.Supp.2d 1225, 1227 (C.D.Cal.1998). “Thus, the class of pleadings that are appropriate subjects for a motion under Rule 12(e) is quite small-the pleading must be sufficiently intelligible for the court to be able to make out one or more potentially viable legal theories on which the claimant might proceed, but it must not be so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good faith or without prejudice to himself.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (2d ed.) § 1376.

Whether to grant a Rule 12(e) motion for a more definite statement lies within the wide discretion of the district court. See id. § 1377. However, “[mjotions for more definite statement are viewed with disfavor, and are rarely granted.” William W. Schwarzer, A. Wallace Tashima, and James M. Wagstaffe, Federal Civil Procedure Before Trial § 9:351 (2000).

4. Motion to Strike.

Rule 12(f) provides in pertinent part that the Court “may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Motions to strike are disfavored and infrequently granted. Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D.Cal.2005). A motion to strike should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation. Id. The function of a Rule 12(f) motion to strike is to avoid the expenditure of time and money that might arise from litigating spurious issues by dispensing with those issues prior to trial. Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev’d on other grounds, 510 U.S. 517 , 114 S.Ct. 1023 , 127 L.Ed.2d 455 (1994).

B. District Defendants’ Motion to Dismiss.

1. Lack of Subject Matter Jurisdiction.

The District Defendants move to dismiss the Fifth Claim for violation of § 504 of the Rehabilitation Act of 1973, the Sixth Claim for violation of Title II of the Americans with Disabilities Act, and the Seventh Claim for violation of Section 1983 for lack of subject matter jurisdiction.

The District Defendants argue that the Complaint alleges that they failed to properly implement Plaintiffs IEP when they contacted the police, regardless of the labels Plaintiff attaches to his claims. The District Defendants contend that Plaintiff cannot sue under any federal law until he completely exhausts administrative remedies under the Individuals with Disabilities Education Act (“IDEA”). District Defendants argue that the Complaint demonstrates on its face that this lawsuit is premised on the claim that the District was not justified in its decision to implement the emergency intervention of contacting the police instead of following the procedures outlined in Plaintiffs IEP.

The IDEA is a comprehensive educational scheme that confers on students with disabilities a substantive right to public education. See Van Duyn v. Baker Sch. Dist. 5J, 481 F.3d 770, 776 (9th Cir.2007); Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298 , 1300 (9th Cir.1992). The IDEA provides financial assistance to enable states to meet their educational needs, but conditions funding on the effectuation of a policy that assures all children with disabilities the right to a free appropriate public education (“FAPE”). 20 U.S.C. § 1412 (a)(1). To that end, the IDEA requires that school districts develop an IEP for each child with a disability. See Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516 , 127 S.Ct. 1994 , 167 L.Ed.2d 904 (2007). When a party is dissatisfied with “the adequacy of the education provided, the construction of the IEP, or some related matter,” Winkelman, id. at 525, 127 S.Ct. 1994 , the IDEA provides a procedural recourse. Participating states are required to establish procedures giving an opportunity for any party to present a complaint concerning an IEP. 20 U.S.C. § 1415 (b)(6)(A). California has adopted legislation to comply with these procedures. See California Education Code § 56500-56507; 5 California Code of Regulations §§ 3040-3054. 20 U.S.C. § 1415 (i) provides:

The District Defendants argue that a lawsuit alleging discrimination is precluded where administrative remedies have not been exhausted under the IDEA, citing Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162 (9th Cir.2007) and Robb v. Bethel Sch. Dist. # 403, 308 F.3d 1047 (9th Cir.2002).

In Kutasi Shane, an autistic child, attended Round Meadow Elementary School in California, from 1999 until he graduated in 2004. In 1999, Shane’s parents and the School District agreed to an IEP. In accordance with the 1999 IEP, Shane attended a general education first-grade class with an aide for most of the morning and received home schooling in the afternoon. The Kutasis and the School District, however, were unable to reach agreement on a modified IEP for Shane for the succeeding school years. As a result of a “stay put” order issued by the California Special Education Hearing Officer that extended the terms of the 1999 IEP, Shane continued to receive full inclusion in a classroom with a modified curriculum, as well as speech and occupational therapy services. According to the Complaint, a long history of bitter disagreement between the Kutasis and the School District came to a head in the fall of 2004 after Shane graduated from Round Meadow Elementary School. Shane was scheduled to attend A.E. Wright Middle School. But on August 27, 2004, three days before the 2004-2005 school term began, the School District proposed an IEP that required Shane to be placed in a “Special Day Class,” created for students with disabilities regardless of their age, grade or specific disability. The Kutasis rejected the School District’s proposal, and the parties continued to differ over the kind of educational and related services to be provided Shane. Shane briefly attended general education classes at Wright, but was denied access to the school after three days by Principal Rosenweig, who claimed that Shane was not properly enrolled. Since September 2004, Shane was schooled at home by a team of behavioral therapists pursuant to the stay put order. The Kutasis, on their own behalf as well as Shane’s, filed a complaint in the District Court, alleging a claim for violation of Section 1983 and a claim for violation of Section 504 of the Rehabilitation Act of 1973. The Kutasis alleged that the Defendants had “engaged in a pattern and practice of retaliatory and discriminatory actions against Shane and his parents.” The complaint identified 18 alleged “retaliatory and discriminatory actions”:

After the Kutasis filed their complaint in the District Court, but before the District Court issued a ruling, the School District filed an administrative hearing request, asking the SEHO to approve the August 2004 proposed IEP. The School District’s request did not refer to any of the discriminatory acts alleged in the Kutasis’ complaint. While the School District’s administrative hearing was still pending before the SEHO, the District Court granted the Defendants’ motion to dismiss, holding that the Kutasis failed to exhaust the IDEA’S administrative remedies before filing suit in federal court. Recognizing that “[t]he threshold question is whether the injuries alleged could have been redressed to any degree by the IDEA’S administrative procedures and remedies,” the District Court found that “[e]ven a cursory review of Plaintiffs’ Complaint makes clear that some of the alleged injuries could almost certainly be redressed by the IDEA’S administrative procedures and remedies.” The District Court concluded that, for example, an administrative hearing “could potentially be dispositive, or, at the least, would be helpful to this Court’s analysis” of the Kutasis’ allegations that the Defendants refused to allow Shane to attend Wright and repeatedly refused to reimburse them for Shane’s therapy. The Kutasis’ filed a timely notice of appeal. After the District Court dismissed the Kutasis’ complaint, the SEHO issued a ruling against the School District on the August 2004 proposed IEP, finding that it did not constitute a FAPE in the least restrictive environment. The SEHO’s opinion did not address any of the issues raised by the Kutasis’ complaint and the Kutasis’ claims still had not been exhausted. 494 F.3d at 1164-1166 .

The Ninth Circuit affirmed the District Court’s dismissal of the Kutasis’ complaint. First, the Ninth Circuit rejected the parents’ argument that they were not required to exhaust IDEA administrative remedies for their claims. Id. at 1167-1168 . Second, the Ninth Circuit rejected the argument that exhaustion of IDEA administrative remedies would have been futile because their injuries could not have been redressed to any degree by a due process hearing:

494 F.3d at 1168-1170 .

The District Defendants also refer the Court to Fliess v. Washoe County School District, 90 Fed.Appx. 240 (9th Cir.2004). In so doing, the District Defendants note:

The District Defendants cite In re Van Wagoner Funds, Inc. Securities Litigation, 382 F.Supp.2d 1173 , 1182 n. 5 (N.D.Cal.2004):

Plaintiff argues that the District Defendants have violated Ninth Circuit Rule 36-3 by citing Fliess and that this violation warrants dismissal of the District Defendants’ motion due to prejudice to Plaintiff. Ninth Circuit Rule 36-3 provides:

Plaintiff cites Sorchini v. City of Covina, 250 F.3d 706, 708-709 (9th Cir.2001):

Here, the Ninth Circuit’s unpublished opinion in Fliess was issued in 2004. No showing is made by the District Defendants that any of the exceptions set forth in Rule 36-3(e) apply.

The District Defendants assert that they “explicitly cited Fliess as a decision by the District Court of Nevada where a motion to dismiss was granted under facts that are virtually identical to the facts of the present case.”

However, the District Defendants did not provide a copy of the District of Nevada’s ruling; they provided a citation to and copy of the Ninth Circuit’s unpublished opinion affirming the District Court’s dismissal. This is not in accordance with the rules.

The District Defendants then argue that “it is not clear that the Ninth Circuit Court of Appeals Local Rules apply to govern what cases may be cited to a District Court as persuasive authority.” In so arguing, the District Defendants construe the language in Rule 36-3, “may not be cited to the courts of this circuit,” to mean that the rule only applies to citations to the various Courts of Appeals. District Defendants refer to Rule 47(a) (1), Federal Rules of Appellate Procedure:

[Emphasis added]. District Defendants contend that Rule 47(a)(1) does not grant the individual Circuit Courts authority to make rules governing the District Courts’ practice. District Defendants refer to Rule 83(a)(1), Federal Rules of Civil Procedure:

District Defendants assert that there is no requirement in Rule 83(a)(1) that the District Courts follow the local rules of the Ninth Circuit. District Defendants refer to Rule 5 — 133(i), Local Rules of Practice for the Eastern District:

District Defendants contend that they complied with Rule 5-133(i) because they attached a copy of the Fliess opinion to their brief. Finally, District Defendants argue that Sorchini is distinguishable because Sorchini contains no holding as to the power of the District Courts to consider unpublished opinions for their persuasive effect.

District Defendants’ construction and interpretation of Rule 36-3 is without merit. This Court has held that Rule 36-3 prohibits citation to unpublished decisions of the Ninth Circuit which do not satisfy the exceptions stated in the rule or which were issued before January 1, 2007. See Brown v. County of Kern, 2008 WL 544565 at *12 n. 6 (E.D.Cal.2008). However, District Defendants’ citation to the Ninth Circuit opinion affirming the District Court’s dismissal in Fliess does not warrant the sanction requested by Plaintiff, i.e., that District Defendants’ motion to dismiss be denied on this ground alone. The Ninth Circuit’s Fliess opinion does not apply.

However, the parties were advised by Order filed on June 24, 2009, that judicial notice is taken of the Order granting Defendants’ motion to dismiss filed on December 23, 2002 in Fliess v. Washoe County, et al., No. CV-N-02-0011-LRH(RAM), United States District Court for the District of Nevada. The Court may take judicial notice of matters of public record, including duly recorded documents, and court records available to the public through the PACER system via the internet. See Fed.R.Evid. Rule 201(b); United States v. Howard, 381 F.3d 873, 876, fn. 1 (9th Cir.2004). Ninth Circuit Rule 36-3 does not prohibit citation to or reliance on unpublished District Court decisions, which are, like published District Court opinions, only persuasive authority. San Luis & Delta-Mendota Water Authority v. Salazar, 2009 WL 1575169 at *18 n. 8 (E.D.Cal.2009); In re Van Wagoner Funds, Inc. Securities Litigation, 382 F.Supp.2d 1173 , 1182 n. 5 (N.D.Cal.2004).

In Fliess , the Nevada District Court granted the defendants’ motion to dismiss for lack of subject matter jurisdiction. The plaintiff was a minor child who suffered a number of disabilities and attended public school in Washoe County, Nevada. Plaintiff brought his action under the IDEA. The District Court ruled:

Plaintiff argues that he was not required to exhaust administrative remedies under the IDEA because his lawsuit does not pertain to any matters that could be resolved under the IDEA. Plaintiff asserts that he resolved all educational issues with the School District prior to filing this Complaint and does not seek any remedies like those sought in Kutasi Plaintiff submits the declaration of Plaintiffs counsel, Christine Hopkins, wherein she avers that Plaintiff can truthfully amend his Complaint “to state that following the September 29, 2008 incident, the school district initially denied Plaintiffs request for independent study as a temporary placement but the Plaintiffs parents and district then came to an agreement for a temporary independent study placement through October 17, 2008;” “that [C.B.’s] parents received a letter dated October 31, 2008, from Sonora School District Superintendent Marguerite Bulkin stating the following (with Plaintiffs name redacted to state [C.B.]): ‘At the October 29, 2008 meeting of the Sonora School District Governing Board, the Board voted to accept your request to revoke the inter-district Attendance Agreement for your son [C.B.], effective October 20, 2008 ... According to Gold Rush Charter School, [C.B.] enrolled in their program on October 28, 2008;” and that C.B. “and his parents worked administratively with Sonora School District since 2005 to obtain services under the IDEA and section 504 of the Rehabilitation [Act], including but not limited to (a) evaluation of his disabilities, (b) approval of an inter-district transfer agreement to prevent an attempt by Sonora School District to remove Plaintiff from the School District based on residency issues (despite the attendance of Plaintiff and his siblings at Sonora Elementary School for many years) and (c) implementation and approval of his section 504 behavioral accommodation plan.” Plaintiff argues that these proposed amendments will establish that Plaintiff did exhaust all his administrative remedies prior to bringing this lawsuit because he agreed to a post-incident placement and has worked with the School District since 2005 to achieve accommodations.

At the hearing, District Defendants argued that amendment to include these allegations will not satisfy the administrative exhaustion requirements. District Defen dants contend that informal discussions and resolution with the School District do not suffice to comply with the IDEA’S statutory exhaustion requirements, citing S.M. v. West Contra Costa County Unified School District Financing Corp., 2009 WL 1033826 (N.D.Cal.2009), and Hayden C. v. Western Placer Unified School District, 2009 WL 1325945 (E.D.Cal.2009).

In S.M., Plaintiff, a student with a learning disability, filed suit in 2006 against the school district and others alleging that he had been physically and verbally abused by other students and staff, and that, instead of addressing the abusive behavior, the school district shifted him to a campus for students with learning disabilities where the abuse continued. Plaintiff alleged, among others, claims under the IDEA. The District Court dismissed that case in 2007 for failure to exhaust administrative remedies. Shortly before the 2007 dismissal, Plaintiff and his mother filed a request for due process with the school district’s Office of Administrative Hearings (OAH). On March 7, 2007, the school district, Plaintiff and his mother resolved the OAH proceedings by entering into a “Final Mediation Agreement,” which contained a General Release and Discharge. In November 2007, Plaintiff and his mother filed the case at issue based on many of the same events in the original 2006 case, asserting claims under the Constitution and federal statutes, as well as under California statutory and common law. After finding that Plaintiffs claims, other than tort claims, arising from conduct that occurred prior to March 7, 2007, were barred by the Final Mediation Agreement, the District Court addressed Plaintiffs claims based on events subsequent to March 7, 2007. The District Court dismissed those claims because of Plaintiffs failure to exhaust the IDEA’S administrative remedies.

In Hayden C., the Plaintiffs parents originally filed for a due process hearing on July 15, 2008, alleging IDEA violations with regard to the educational services Plaintiff was receiving. That administrative complaint was presented to the Office of Administrative Hearings in accordance with the provisions of the IDEA. Plaintiff subsequently withdrew her action pursuant to a Settlement Agreement executed by the parties, which detailed educational programs and services to be provided to Plaintiff. After the settlement was reached, Plaintiffs parents complained about the way the educational services contemplated by the settlement agreement were being implemented. In December 2008, Plaintiff filed the instant action, asking the District Court to enforce alleged breaches of the settlement agreement and asserting causes of action pursuant to the IDEA arising out of the school district’s alleged failure to adhere to the provisions of the settlement agreement. Plaintiff did not institute administrative proceedings concerning the issues raised in the complaint before filing suit. The school district moved to dismiss for lack of jurisdiction based on Plaintiffs failure to exhaust administrative remedies. The District Court dismissed the action on this ground. The District Court, citing Pedraza v. Alameda Unified School District, 2007 WL 949603 (N.D.Cal.2007) and Weber v. Cranston Sch. Comm., 212 F.3d 41, 53 (1st Cir.2000), ruled that the IDEA’S exhaustion requirement is not satisfied when parties enter into a mediated settlement agreement. The District Court rejected Plaintiffs argument that Pedraza was distinguishable because it was decided prior to 2005 enactment of 20 U.S.C. § 1415 (e), making settlement agreements judicially enforceable:

Id. at *4 .

In Pedraza v. Alameda Unified School District, supra, 2007 WL 949603 , Plaintiff, who was diagnosed with autism, participated in an IEP meeting at which time the school district outlined its proposal for Plaintiffs FAPE. Plaintiff disagreed with the proposal and requested a second IEP meeting. Plaintiffs retained counsel and initiated a due process proceeding to resolve issues relating to the school district’s proposed FAPE. Before the due process hearing took place, Plaintiff and the school district agreed to mediate and subsequently entered into a compromise and release agreement purporting to resolve the issues raised in the due process complaint. Soon after the school year commenced, the school district breached the settlement agreement. Plaintiff filed a complaint with the California Department of Education (CDE) setting forth the school district’s alleged failure to fulfill its obligations under the settlement agreement and the IDEA. The CDE issued a report finding that the school district was in compliance with the terms of the settlement agreement. Plaintiff requested reconsideration. The CDE granted their request, finding that the school district was out of compliance with the terms of the settlement agreement and directed the school district to arrange an IEP meeting to evaluate Plaintiffs program. The CDE found that, if dispute resolution and/or mediation did not result in a settlement agreement and appropriate program for Plaintiff, the school district shall insure FAPE by initiating a due process proceeding. No settlement agreement was reached and the school district failed to initiate a due process proceeding as required by the CDE. Plaintiff notified the CDE of the school district’s noncompliance, but the CDE responded that all required corrective actions have been noted and that the case was closed. Plaintiff then initiated a second due process hearing, alleging that the school district had denied Plaintiff a FAPE by failing to abide by the settlement agreement. The OAH dismissed the claim for lack of jurisdiction because violations of mediated settlement agreements are within the purview of the CDE. Plaintiffs then filed suit in the district court. The district court ruled:

Id. at *5. The Pedraza Court ultimately ruled that exhaustion of administrative remedies would be futile and denied dismissal for lack of subject matter jurisdiction.

In Tyler B., supra, 253 F.Supp.2d 1111 , the school district adopted an IEP for Plaintiff, who was legally blind and suffered from acute adrenal insufficiency. Plaintiffs parents were dissatisfied with the IEP because it did not address providing Plaintiff with health related services in the event of an adrenal crisis episode. After complaining to school district officials, Plaintiffs parents and grandmother filed complaints with the CDE. The CDE investigated and issued two reports finding that the school district was not in compliance with its duties and obligations. Plaintiff alleged that, in response to the CDE reports, the school district retaliated against him by forbidding all teachers and district personnel to administer an emergency adrenal injection, should Plaintiff need one. Because the district refused to implement a medical emergency plan, Plaintiffs parents removed him from school. In the ensuing weeks, the district agreed to implement a medical emergency plan, and Plaintiff returned to school. After Plaintiffs return, his parents continued to complain that Plaintiff was not receiving appropriate special education services and, in what his parents viewed as the district’s continued refusal to remedy the deficiencies noted in the CDE’s reports, Plaintiff was removed from the school and schooled at home for the next three years. In 1999, Plaintiff and his parents filed a “Claim against Public Entity” with the Governing Board of the school district, seeking damages for violation of civil rights for refusing to implement an IEP and for retaliation when they asserted their federal and state rights. The Board denied the claim. Plaintiff and his parents then filed suit for violations of the Rehabilitation Act, the ADA, the Unruh Act and Section 1983 in state court. Approximately a year and a half later, Tyler B. and his parents filed a complaint in the United States District Court, alleging claims for violation of Section 1983, Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, and the Unruh Act. Shortly before the state court action was to be tried, Plaintiffs voluntarily dismissed the state court action. The District Court ruled on summary judgment that Tyler B. was not required to exhaust his administrative remedies under the IDEA prior to filing his claims for relief. Defendants filed a motion for reconsideration. Tyler B. argued that exhaustion was not required because the remedy he sought is money damages for civil rights violations and not educational benefits under the IDEA and that he had satisfied the exhaustion require ment of the IDEA through the complaint his parents filed with the Department of Education in 1998. The District Court ruled that Tyler B. had not satisfied the exhaustion requirements of the IDEA:

Id. at 1117. Plaintiff, relying on Porter v. Board of Trustees of Manhattan Beach, 307 F.3d 1064 (9th Cir.2002), argued that, although his compliance complaints did not result in the culmination of a due process hearing, he should be deemed to have exhausted the administrative process required under the IDEA since he initiated review at the state level which fulfilled the essential purposes of the IDEA administrative process. Id. The District Court rejected Plaintiffs argument:

Id. at 1118 . The District Court further ruled that Tyler B. was required to exhaust his administrative remedies under the IDEA before proceeding with his claims:

Id. at 1119-1120 .

Plaintiff argued at the hearing , that formal compliance with the IDEA’S exhaustion requirements is not mandated, citing Witte v. Clark County School Dist., supra, 197 F.3d 1271 (9th Cir.1999). Plaintiffs reliance on Witte , however, begs the question; Witte held that the plaintiff in that case was not required to exhaust the IDEA administrative remedies.

Plaintiff asserts that he suffered physical injury and psychological injury through the battery committed on his person by the handcuffing and false imprisonment for which he now seeks retrospective relief. Plaintiff contends that the Ninth Circuit in Robb and Kutasi gave no indication that a different standard applies to disabled versus non-disabled students who are the victims of torts and civil rights violations:

Plaintiff argues that a due process hearing under California Education Code § 56501 is only available under four instances. Section 56501(a) provides that a due process hearing procedures may be initiated under any of the following circumstances:

Plaintiff contends that this litigation concerns none of these circumstances:

Plaintiffs position is unpersuasive. The gravamen of the Complaint is that the District did not follow the IEP, i.e., that the School District did not “initiate” the IEP. This case is analogous to the District Court’s decision in Fliess . Nonetheless, the Court grants Plaintiff leave to amend to allege the facts upon which he relies in contending that he has exhausted administrative' remedies; without the specific facts, and accompanying documents, the Court cannot determine as a matter of law whether it has jurisdiction to hear Plaintiffs claims.

District Defendant’s motion to dismiss for lack of subject matter jurisdiction is GRANTED WITH LEAVE TO AMEND. Plaintiff shall file a First Amended Complaint alleging the specific facts upon which intends to rely in contending that he has exhausted administrative remedies under the IDEA.

2. State Claims Barred by Plaintiffs Failure to Exhaust Administrative Remedies Pursuant to California Code of Regulations.

The District Defendants move to dismiss the First Cause of Action for violation of Sections 51(b), 51.5(a), and 54 of the Unruh Civil Rights Act and the Fourth Cause of Action for intentional infliction of emotional distress state law as barred by Plaintiffs failure to exhaust administrative remedies pursuant to the California Code of Regulations, 5 Cal.Code Regs. §§ 3040-3054. District Defendants assert that these administrative regulations provide for an administrative remedy under state law, separate and apart from the exhaustion requirements of the IDEA. District Defendants cite California Correctional Peace Officers Assn. v. State Personnel Board, 10 Cal.4th 1133, 1148 , 43 Cal.Rptr.2d 693 , 899 P.2d 79 (1995): “Tn brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy must be exhausted before the courts will act.’ ”

Plaintiff responds that District Defendants cite no authority that the regulations adopted by the State of California for behavioral intervention plans create a special exhaustion requirement for state claims related to behavioral plans and asserts that none exists. Plaintiff notes that California Civil Code § 52(e) of the Unruh Civil Rights Act provides:

The Court’s research located no decision expressly addressing District Defendant’s position. There is no question that the IDEA’S exhaustion requirements are limited to claims for violations of federal rights. See M.J. ex rel. G.J. v. Clovis Unified School Dist., 2007 WL 1033444 *12 (E.D.Cal.2007) (exhaustion of IDEA administrative remedies not required prior to filing a claim for violation of the Unruh Act).

At the hearing, District Defendants referred the Court to a decision, subsequently provided by email to the Courtroom Deputy, Tri-County Special Education Local Plan Area v. County of Tuolumne, 123 Cal.App.4th 563 , 19 Cal.Rptr.3d 884 (2004). In this case, a special education local plan area and a county special education unit sued the county and certain officials seeking to force the county to continue providing IDEA mental health services for persons with exceptional needs and to repay plaintiffs for the funds spent to provide services after defendants’ termination of services. The trial court sustained defendants demurrer that plaintiffs had failed to exhaust available administrative remedies prior to filing suit. On appeal, plaintiffs/appellants argued that then-causes of action under the Unruh Civil Rights Act and 42 U.S.C. § 1983 do not require exhaustion. Id. at 577 , 19 Cal.Rptr.3d 884 . After noting its doubt that appellants are aggrieved persons under the Unruh Civil Rights Act, the Court of Appeal ruled:

Id. at 577-578 , 19 Cal.Rptr.3d 884 .

Tri-County Special Education Local Plan Area is too factually different from the case before the Court to constitute persuasive authority that Plaintiff is required to .exhaust administrative remedies under state law, separate and apart from the exhaustion requirements of the IDEA.

Because Plaintiff will be required to amend to allege facts establishing exhaustion of administrative remedies under the IDEA, resolution of this issue is deferred. If the Court concludes that Plaintiffs federal claims are subject to the IDEA and administrative remedies have not been exhausted as required by law, Plaintiffs supplemental state law claims against the District Defendants will be dismissed pursuant to 28 U.S.C. § 1367 . District Defendants’ motion to dismiss the First and Fourth Causes of Action for failure to exhaust state administrative remedies is DENIED WITHOUT PREJUDICE.

3. Federal Law Precludes Plaintiff’s Fourth Claim for Intentional Infliction of Emotional Distress.

District Defendants further argue that Plaintiff is improperly using this lawsuit to challenge a teacher’s authority to maintain order at school. District Defendants move to dismiss the Fourth Claim for Intentional Infliction of Emotional Distress on the ground that the Paul, D. Coverdell Teacher Protection Act of 2001,” 20 U.S.C. § 6731 et seq. provides teachers with immunity from liability for such claims. The purpose of the Act “is to provide teachers, principals, and other school professionals the tools they need to undertake reasonable actions to maintain order, discipline, and an appropriate educational environment.” 20 U.S.C. § 6732 . 20 U.S.C. § 6736 (a) provides:

Plaintiff responds that the Complaint alleges that Defendant Sinclair’s actions were in violation of Federal and State laws, that Sinclair was not authorized to take the actions that allegedly caused harm to Plaintiff, that the harm to Plaintiff was caused by Defendant Sinclair’s “criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety” of Plaintiff. Plaintiff also refers to Section 6736(d)(1)(C):

Plaintiff contends that the Complaint adequately alleges that Defendant Sinclair violated Federal and State civil rights laws.

District Defendants reply that this ground for dismissal is limited solely to the Fourth Claim for Intentional Infliction of Emotional Distress. Further, District Defendants argue, the Complaint does not allege facts from which it may be inferred that Defendant Sinclair’s conduct amounted to “willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the teacher.” District Defendants argue that the only misconduct alleged against Defendant Sinclair is that she notified the police in response to Plaintiffs admitted refusal to follow instructions by school staff. District Defendants assert:

District Defendants’ motion to dismiss the Fourth Cause of Action on the ground of immunity pursuant to 20 U.S.C. § 6736 (a) is GRANTED WITH LEAVE TO AMEND.

4. California Government Code § 820.2 Bars Fourth Claim for Intentional Infliction of Emotional Distress.

District Defendants move to dismiss the Fourth Claim for Relief on the ground that it is barred by California Government Code § 820.2:

District Defendants cite Jane Doe v. Petaluma City Sch. Dist., 830 F.Supp. 1560 (N.D.Cal.1993), where a junior high school student brought an action against a school district, counselor, and principal, alleging that defendants failed to put an end to sexual harassment inflicted on the student by her peers. The District Court granted immunity pursuant to Section 820.2 with respect to the claims for intentional and negligent infliction of emotional distress “[bjecause the acts and omissions of Mr. Horninghouse [the school counsel- or] that are the basis of the complaint were the result of the exercise of discretion vested in him....” Id. at 1583 . In so ruling, the District Court relied on Kemmerer v. County of Fresno, 200 Cal.App.3d 1426, 1438 , 246 Cal.Rptr. 609 (1988). In Kemmerer , a civil service employee brought suit against the county and individual county officials based on disciplinary proceedings instituted against him and his discharge arising out of those proceedings. One of the causes of action was for intentional infliction of emotional distress. In finding immunity under Section 820.2, the Kemmerer Court held:

Kemmerer, 200 Cal.App.3d at 1437 , 246 Cal.Rptr. 609 .

District Defendants also cite Nicole M. By and Through Jacqueline M. v. Martinez Unified School Dist., 964 F.Supp. 1369, 1389-1390 (N.D.Cal.1997). There, a female student brought an action against a school district, the superintendent and the principal for sex discrimination, including a claim for negligence and negligent infliction of emotional distress. The District Court ruled that “[d]ecisions by a school principal or superintendent to impose discipline on students and conduct investigations of complaints necessarily require the exercise of judgment or choice, and accordingly are discretionary, rather than ministerial, acts.”

Plaintiff asserts that District Defendants and, apparently the eases relied upon by District Defendants, fail to cite to the legal standards governing the immunity set forth in Section 820.2.

In Caldwell v. Montoya, 10 Cal.4th 972 , 42 Cal.Rptr.2d 842 , 897 P.2d 1320 (1995), the California Supreme Court, citing Johnson v. State, 69 Cal.2d 782 , 73 Cal.Rptr. 240 , 447 P.2d 352 (1968), ruled:

10 Cal.4th at 981-982, 42 Cal.Rptr.2d 842 , 897 P.2d 1320 .

Plaintiff cites McCorkle v. City of Los Angeles, 70 Cal.2d 252, 261-262 , 74 Cal.Rptr. 389 , 449 P.2d 453 (1969) and Martinez v. City of Los Angeles, 141 F.3d 1373, 1379 (9th Cir.1998). In McCorkle , a police officer responded to a traffic accident and decided to conduct an accident investigation. While conducting the investigation, the officer’s negligence caused McCorkle, one of the drivers involved in the accident, to be hit by a passing car. The California Supreme Court ruled:

In Martinez v. City of Los Angeles, the Ninth Circuit, citing McCorkle , ruled:

Martinez also relied on California Government Code § 820.4 in precluding immunity from liability for the officers for the specific claims of false arrest and false imprisonment.

District Defendants reply that Plaintiffs reliance on McCorkle is misplaced:

District Defendants’ motion to dismiss the Fourth Cause of Action on the ground of Government Code § 820.2 immunity is DENIED WITHOUT PREJUDICE. The California Supreme Court’s decisions in Johnson and Caldwell indicate that the alleged actions of Defendant Sinclair was a ministerial decision implementing a basic policy already formulated, i.e., Plaintiffs IEP.

5. Complaint Fails to Establish Improper Motive.

District Defendants contend that all of Plaintiffs claims against District Defendants require a prima facie showing of improper motive, i.e., discriminatory intent. District Defendants contend that they are entitled to a more definite statement, citing Crawford-El v. Britton, 523 U.S. 574 , 118 S.Ct. 1584 , 140 L.Ed.2d 759 (1998).

In Crawford-El , the Supreme Court held that a plaintiff bringing a constitutional action against government officials for damages, for which an official’s improper motive is a necessary element, need not adduce clear and convincing evidence of improper motive in order to defeat an official’s motion for summary judgment. The Supreme Court then stated:

523 U.S. at 597-598 , 118 S.Ct. 1584 .

District Defendants argue that the Complaint alleges no facts from which a discriminatory motive may be inferred and contends that the Complaint merely alleges the legal conclusion that the decision to contact the police was discriminatory.

In addition, District Defendants argue that the Complaint’s reference to “shutting down” alleges no facts describing what this physical and mental condition entails as do the allegations of “safe zones.” District Defendants further assert that the Complaint alleges no facts establishing what occurred on September 29, 2008: “There are no facts regarding when or where this ‘shut down’ occurred, who was present, or what occurred leading up to the police being called.”

District Defendants’ motion to dismiss on this ground is GRANTED WITH LEAVE TO AMEND. The allegations that District Defendants’ conduct was discriminatory are legal conclusions; no facts supporting the basis, how and why the conduct was discriminatory, other than that Plaintiff suffered disabilities are alleged. Given the Supreme Court’s recent rulings concerning Rule 12(b)(6) motions and the dicta from Crawford-El , Plaintiff should to plead specific facts to support the conclusion that the District Defendants’ conduct was motivated by intentional (disability) discrimination.

6. Statement of Claim for Violation of the Unruh Civil Rights Act.

a. Election of Remedies.

The First Cause of Action against Sonora School District is for violation of Section 51(b), 51.5(a), and 54 of the Unruh Civil Rights Act “by discriminating against Plaintiff on account of his disability and by causing Plaintiff to be forcibly removed from Sonora Elementary School on account of his disability.”

Civil Code § 54 is not part of the Unruh Civil Rights Act; it is part of the Disabled Persons Act.

California Civil Code § 54.3(c) provides that “[a] person may not be held liable for damages pursuant to both this section and Section 52 for the same act or failure to act.”

As explained in Molski v. Arciero Wine Group, 164 Cal.App.4th 786, 791-792 , 79 Cal.Rptr.3d 574 (2008):.

District Defendants contend that Plaintiff improperly attempts to sue under both the Unruh Civil Rights Act and the Disabled Persons Act and must be required to elect one remedy.

Plaintiff cites Rule 8(a)(3), Federal Rules of Civil Procedure, which provides that the relief sought in a complaint “may include relief in the alternative or different types of relief,” and Rule 8(d)(2) & (3), allowing alternative or inconsistent claims for relief. Plaintiff cites Clauson v. Superior Court, 67 Cal.App.4th 1253, 1256 , 79 Cal.Rptr.2d 747 (1998), in which the Court of Appeals ruled that a motion to strike inconsistent remedies should not have been granted and that, once a verdict is returned, the plaintiff must then elect the remedy.

District Defendants’ motion to dismiss the First Cause of Action on this ground is DENIED as election of remedies is pre_ mature.

b. Intentional Discrimination.

District Defendants move to dismiss the First Cause of Action on the ground that the Complaint fails to allege facts establishing intentional discrimination. District Defendants cite Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1175 , 278 Cal.Rptr. 614 , 805 P.2d 873 (1991): “[A] plaintiff seeking to establish a case under the Unruh Act must plead and prove intentional discrimination.”

There is recent California Supreme Court authority that the parties may need to discuss. In Munson v. Del Taco, Inc., 46 Cal.4th 661 , 94 Cal.Rptr.3d 685 , 208 P.3d 623 (2009), the California Supreme Court granted the Ninth Circuit’s request to decide “ ‘[m]ust a plaintiff who seeks damages under California Civil Code § 52, claiming the denial of full and equal treatment on the basis of disability in violation of the Unruh Civil Rights Act (Civ.Code § 51) and the Americans with Disabilities Act of 1990 ( 42 U.S.C. § 12101 et seq.), prove “intentional discrimination.” ’ ” The California Supreme Court addressed whether “an Unruh Civil Rights Act plaintiff relying on subdivision (f) of section 51 obtain damages for denial of full access to a business establishment in violation of the ADA and the Unruh Civil Rights Act without proof the denial involved intentional discrimination” and concluded that “a plaintiff proceeding under section 51, subdivision (f) may obtain statutory damages on proof of an ADA access violation without the need to demonstrate additionally that the discrimination was intentional.” Munson involved an alleged violation of Title III of the ADA. In Lentini v. California Center for the Arts, Escondido, 370 F.3d 837 (9th Cir.2004), the Ninth Circuit ruled that “[i]t is undisputed that a plaintiff need not show intentional discrimination in order to make out a violation of the ADA.” Id. at 846 . However, Lentini involved an alleged violation of Title III of the ADA. In Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir.2001), the Ninth Circuit held:

Duvall adopted a deliberate indifference standard to determine intentional discrimination on the part of the defendant for recovery of monetary damages under Title II of the ADA or the Rehabilitation Act. Id. “Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to Act upon that likelihood.” Id. at 1139 . Consequently, to the extent that the Complaint may be construed to allege a violation of the Unruh Civil Rights Act or the Disabled Persons Act based on a violation of the ADA, because the Complaint alleges a violation of Title II of the ADA, Plaintiff must plead and prove intentional discrimination in order to state a claim for relief in the First Cause of Action.

Plaintiff argues that the facts alleged in the Complaint, when read as a whole, plead intentional discrimination. Plaintiff refers to allegations that District Defendants knew of Plaintiffs disability, knew how to handle it because of the provisions of the IEP, yet threatened Plaintiff with police intervention and caused the police to forcibly remove Plaintiff from the school grounds. The Complaint alleges that there was no justification for this treatment. The Complaint alleges that District Defendants committed these acts “maliciously,” “oppressively” and “in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard of Plaintiffs rights.” None of these allegations state that this conduct was undertaken to discriminate against Plaintiff because of his disabilities. Plaintiff asserts that, while he can amend to allege that Defendant Sinclair acted out of a motive to punish and retaliate against Plaintiff because of his disability, this is “already apparent from a reading of the facts of the Complaint.” Plaintiff notes that Rule 9(b), Federal Rules of Civil Procedure, provides that “[mjalice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.”

District Defendants refer to the allegation that Plaintiff “shut down” and became unresponsive to school staff. District Defendants contend that Plaintiff only alleges a legal conclusion that the decision to contact the police was discriminatory and provide no facts from which it may be inferred that this decision was based on Plaintiffs disability. District Defendants argue that Plaintiffs position is absurd:

District Defendants further reply that Plaintiffs reliance on Rule 9(b) ignores the Supreme Court’s comments in Crawford-El. See discussion supra.

District Defendants’ motion to dismiss on this ground is GRANTED WITH LEAVE TO AMEND. Plaintiff must allege facts showing intentional discrimination.

7. Intentional Infliction of Emotional Distress.

District Defendants move to dismiss the Fourth Cause of Action for intentional infliction of emotional distress for failure to state a claim upon which relief can be granted.

District Defendants argue that the Complaint fails to plead a statutory violation as required to establish liability against a public entity, citing California Government Code § 815(a):

Except as otherwise provided by statute:

Plaintiff responds that a public employee may be liable for an injury “caused by his Act or omission to the same extent as a private person.” California Government Code § 820(a). Plaintiff further contends that he has pled violations of state and federal statutes governing protection of the civil rights of disabled persons “which buttress his intentional infliction of emotional distress cause of action.”

To the extent that the Fourth Cause of Action seeks to impose tort liability on the School District for intentional infliction of emotional distress, Section 815(a) bars the cause of action. Section 815 was enacted to eliminate public entity liability based upon common law tort claims. See Williams v. Horvath, 16 Cal.3d 834, 838 , 129 Cal.Rptr. 453 , 548 P.2d 1125 (1976); see also Cochran v. Herzog Engraving Co., 155 Cal.App.3d 405, 409 , 205 Cal.Rptr. 1 (1984) (“Government Code section 815, enacted in 1963, abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution.”).

District Defendants motion to dismiss the Fourth Cause of Action as alleged against the School District is GRANTED WITH PREJUDICE based on Government Code § 815.

District Defendants further argue that the Complaint does not allege facts stating a claim for intentional infliction of emotional distress.

Under California law, the elements of a claim for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Christensen v. Superior Court, 54 Cal.3d 868, 903 , 2 Cal.Rptr.2d 79 , 820 P.2d 181 (1991). “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.” Id.

District Defendants argue that the fact alleged do not establish outrageous conduct under this standard. The Complaint alleges that Defendant Sinclair warned Plaintiff that the police would be called if Plaintiff did not follow instructions and that the police were called because Plaintiff was unresponsive and refused to follow instructions of school staff.

Plaintiff cites Doe ex rel. Doe v. St. of Hawaii Dept. of Education, 334 F.3d 906 (9th Cir.2003).

In Doe, Doe, a second grade student, was sent to the principal, Keala, to be disciplined for fighting. Doe refused to stand against the wall for his time-out punishment. Keala followed through on his threat to take Doe outside and tape him to a nearby tree if he did not stand still. Keala used masking tape to tape Doe’s head to the tree. The tape remained for about five minutes until a fifth-grade student told Keala that she did not think he should be doing that. Keala instructed the girl to remove the tape, which she did. 334 F.3d at 908 . Keala claimed qualified immunity from liability under Section 1983 for a seizure in violation of the Fourth Amendment and for excessive forcible restraint.

Plaintiff relies on Doe for the proposition that Keala was not entitled to qualified immunity even though he warned Doe that he would tape him to the tree. This does not establish an intentional infliction of emotional distress claim, although the conduct in Doe was much more egregious.

Plaintiff also cites Banks v. Modesto City Schools District, 2005 WL 2233213 (E.D.Cal.2005). In Banks , Banks, a seventh grade student diagnosed with autism and assigned an aide, transferred to a new school. While in the new school, Banks reacted in an aggressive manner. A teacher brought Banks to the school office where the principal, vice principal, and a police officer were present. When Banks became more aggressive, the police officer pepper-sprayed her in the face. Subsequently, Banks had other incidents of aggressive behavior and was reminded by one of the defendants of the pepper-spray incident. On another occasion, Banks was taken from the classroom; Banks begged the teachers not to see the police and grew agitated when she saw the police officer, who proceeding to handcuff Banks. Judge Coyle denied a motion to dismiss the intentional infliction of emotional distress claim on the ground that the alleged conduct was not outrageous:

Relying on Banks , Plaintiff argues that “[hjandcuffing a disabled child as a means of controlling the child’s involuntary manifestations of their disability exceeds the bounds of decency in a civilized society.”

District Defendants reply that the facts alleged against District Defendants are that Plaintiff became completely unresponsive to all school personnel; Plaintiff was located outside on a field; Plaintiff was refusing to accompany his teachers back into school buildings; Plaintiff refused to follow directions even after being advised that the police would be called if Plaintiff continued his refusal; Defendant Sinclair instructed the police to be called when Plaintiff continued to refuse to follow her back into school buildings. District Defendants are not alleged to have engaged in any further conduct after the police arrived. District Defendants argue that the actions alleged to have been taken by Defendant Sinclair cannot reasonably be regarded as being beyond all bounds of decency in a civilized society as a matter of law.

District Defendants’ motion to dismiss the Fourth Cause of Action on this ground is GRANTED WITH LEAVE TO AMEND. The alleged actions by Defendant Sinclair in no way approach those at issue in Doe ex rel. Doe or Banks .

8. Section 501 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, and 12 U.S.C. § 1983 .

District Defendants move to dismiss the Fifth Cause of Action for violation of Section 504 of the Rehabilitation Act against the School District by discriminating against C.B. “on the basis of his disability ... by threatening C.B. with police involvement and by in fact causing such police intervention solely due to C.B.’s disabilities; the Sixth Cause of Action for violation of Title II of the Americans with Disabilities Act against the School District by discriminating against C.B. “on the basis of his disability ... by threatening C.B. with police involvement and by in fact causing such police intervention solely due to C.B.’s disabilities; and the Seventh Cause of Action against Defendant Sinclair in her individual capacity for violation of 42 U.S.C. § 1983 because of Defendant Sinclair’s violations of Section 504 of the Rehabilitation Act and Title II of the ADA by “threatening Plaintiff due to’his disability and causing Plaintiff to face harsh and unreasonable discipline and forcible removal from school by the police on account of his disability.”

District Defendants contend that the Complaint fails to plead facts establishing prima facie claims of violations of these statutes.

A plaintiff bringing a claim under Section 504 of the Rehabilitation Act and Title II of the ADA must show (1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. Duvall v. County of Kitsap, supra, 260 F.3d at 1135 .

District Defendants assert that a plaintiff bringing claims under Title II of the ADA and Section 504 of the Rehabilitation Act in the special education context must also show that the educational decisions relating to the student were so inappropriate as to constitute either bad faith or gross misjudgment. As authority for this contention, District Defendants cite Monahan v. Nebraska, 687 F.2d 1164 , 1170-1171 (8th Cir.1982), cert. denied, 460 U.S. 1012 , 103 S.Ct. 1252 , 75 L.Ed.2d 481 (1983); Alex G. v. Board of Trustees of Davis Joint Unified Sch. Dist., 387 F.Supp.2d 1119, 1124 (E.D.Cal.2005); and Hoekstra v. Independent Sch. Dist., No. 283, 103 F.3d 624, 626-627 (8th Cir.1996), cert. denied, 520 U.S. 1244 , 117 S.Ct. 1852 , 137 L.Ed.2d 1054 (1997). In addition, a plaintiff seeking monetary damages under Section 504 must prove that defendants acted with deliberate indifference. Duvall v. County of Kitsap, supra, 260 F.3d at 1138-1139 .

District Defendants place special emphasis on Alex G., a case involving summary judgment.

In Alex G., Alex, a third-grade student with autism, was enrolled in the school district for the 2001-2002 school year. In accordance with Alex’s IEP, the District placed Alex in a regular education classroom with support services. In addition, the District developed a behavior intervention plan (BIP) to address Alex’s history of aggressive outbursts and violent tendencies. As part of Alex’s BIP, the District established an emergency plan that allowed the use of physical restraints when necessary to protect other students of staff from physical harm. Alex’s parents initially consented to implementation of the BIP and the use of physical restraints. However, in June 2002, just prior to Alex starting the second grade, Alex’s parents withdrew them consent. Alex’s behavior problems continued in the second grade. On the first day of school, Alex had a serious behavior incident that resulted in a three-day suspension. Alex had two more serious behavior incidents in October 2002, during the first week he returned to school. During these incidents, two of Alex’s special education assistants used emergency physical restraints to bring Alex under control in accordance with the District’s plan for emergency interventions. In December 2002, Alex had another serious behavior incident involving his teacher and another student, resulting in a three-day suspension. In February 2003, Alex’s disruptive behavior continued to escalate. He was unable to remain in the classroom for more than ten minutes at a time and spent the majority of his day outside with one or two of his aides. In connection with Alex’s Section 504 discrimination claim, Judge Levi ruled:

387 F.Supp.2d at 1124-1125 .

District Defendants also cite Thompson v. Board of the Special Sch. Dist. No. 1 (Minneapolis), 144 F.3d 574 , 580 (8th Cir.1998) and S.S. v. Eastern Kentucky University, 431 F.Supp.2d 718, 731 (E.D.Ky.2006), aff 'd, 532 F.3d 445 (6th Cir.2008), as holding that imposition of discipline on a disabled student, including calling the police, does not amount to bad faith, gross misjudgment, or deliberate indifference.

In Thompson, Thompson was suspended twice because of behavioral problems, was again suspended for fighting, and after he started grabbing, pushing and kicking other students, school officials called the police, who took Thompson home. 144 F.3d at 577. Thompson’s mother alleged claims under the ADA and Section 504, claiming that the School District failed to alter its discipline policies to accommodate her son, contending that her son was put in “time out” rooms and isolated when he misbehaved and was suspended on several occasions. Id. at 580. Noting that the plaintiff must show bad faith or gross misjudgment, the Eighth Circuit ruled:

Id. at 580.

In S.S., the plaintiff alleged that he was mocked and attacked by one of his frequent attackers. Teachers responded and separated the two and called the police. The school and the police investigated but could not determine who was responsible for the fight. Both students were suspended, the plaintiff for five days and the other student for three. 431 F.Supp.2d at 725 . The District Court rejected the plaintiffs discrimination claim:

Id. at 731 .

District Defendants argue that the Complaint pleads no facts establishing bad faith, gross misjudgment, or deliberate indifference. The Complaint alleges that Plaintiff “shut down” on September 29, 2008, that he became unresponsive and refused to follow instructions from school staff. District Defendants argue that the Complaint alleges only a legal conclusion that the decision to contact the police was discriminatory and that the Complaint alleges no facts establishing any intentional discrimination solely on the basis of Plaintiffs disability.

Plaintiff responds that the allegations of the Complaint plead the required elements for these causes of action. Plaintiff contends that District Defendants actually are arguing that the Complaint fails to meet a special pleading requirement that the District Defendants acted in bad faith, with gross misjudgment, or with deliberate indifference. Plaintiff cites Wong v. Regents of University of California, 410 F.3d 1052 (9th Cir.2005), as holding that no special pleading requirement for bad faith or gross misjudgment is required in the Ninth Circuit.

Wong involved review of the district court’s rulings on summary judgment; there is no discussion in Wong of pleading requirements. This case is of no help.

Plaintiff also contends: “This case, similarly, does not involve the ‘special education’ context which triggers the heightened pleading requirement as Plaintiff is not alleging violations of the IDEA but rather a violation of his 4th amendment and 14th amendment rights which was directly motivated by his disability.”

The Complaint specifically alleges that Defendant Sinclair called the police rather than comply with Plaintiffs IEP. While Plaintiff argues that the IDEA does not apply to his claims, the allegation in the Complaint that Defendant Sinclair failed to follow the IEP seriously undermines this contention.

Plaintiff further argues that the cases relied upon by District Defendants are distinguishable and/or not binding on this Court.

Plaintiff notes that Alex G. involved summary judgment, thereby allowing the District Court to determine bad faith, gross misjudgment or deliberate indifference on a fully developed factual record. Plaintiff notes that the BIP allowed physical restraint to protect students and staff from physical harm, that the teachers and staff worked in good faith to implement a behavioral plan that would accommodate Alex G., and that Alex G. continued to pose a danger to himself and others on a regular basis. Plaintiff argues that the event alleged in the Complaint does not concern an incident which qualifies for emergency behavioral intervention under the California Code of Regulations or a student who qualified for an emergency intervention plan. Plaintiff cites 5 Cal.Code.Regs. § 3052(i):

Plaintiff refers to the allegations that Plaintiff was “shut down” and, when the police arrived, sitting on a bench with his head down.

Plaintiff further argues that the cases upon which District Defendants rely in arguing that calling the police does not amount to bad faith or gross misjudgment are distinguishable. In Thompson, the police took the student home following an incident in which the student started grabbing, pushing and kicking other students. In S.S., the police were called to investigate a physical altercation and investigated both the disabled and non-disabled student. Plaintiff argues that there was no physical altercation when Defendant Sinclair told Plaintiff she would call the police and did call the police, resulting in his forcible removal from the school. Plaintiff argues that bad faith and gross misjudgment “are manifest in utilizing police power to punish and exclude a disabled child from school grounds.”

District Defendants reply that Ninth Circuit authority requires a showing of intentional discrimination. See discussion supra. Further, District Defendants argue, while Plaintiff minimizes the importance of when a school is authorized to call the police, his entire lawsuit is based on this single fact, that he was “shut down” and the police were called. District Defendants assert that the cases cited demonstrate that calling the police concerning a student who is known to be disabled do not of themselves provide an inference of intentional discrimination based on that disability, citing Thompson and S.S. District Defendants note that Plaintiff cites no case holding that a decision to contact the police has ever been held to be discriminatory.

District Defendants further argue that Plaintiff “comes dangerously close to violating Rule 11 ... when he attempts to distinguish Alex G.’s holding from the instant case by arguing that Alex G. concerned a student with a history of ‘aggressive outbursts and violent tendencies’ and stating that ‘the instant litigation does not concern an incident which qualifies for emergency behavioral intervention.’ ” District Defendants assert:

In addition, District Defendants contend that Plaintiffs distinction of Alex G. based on the emergency behavioral plan that allowed physical restraints to protect students and staff from harm, is misplaced because the school in Alex G. used physical restraints despite the parents withdrawal of consent to do so. District Defendants cite 34 C.F.R. § 300.530 (b)(1):

District Defendants argue that the Complaint establishes that Plaintiff violated a code of student conduct by refusing to accompany teachers back into the school buildings. Despite this admission, Plaintiff provides only a legal conclusion that the decision to contact the police was discriminatory because of Plaintiffs disability.

Although there may be more to this incident than is alleged in the Complaint, District Defendants’ motion to dismiss on this ground is DENIED. The Complaint sufficiently alleges the claims; District Defendants’ real argument is that Plaintiff cannot prove them. That is an issue for summary judgment or trial.

9. Qualified Immunity.

Defendant Sinclair moves to dismiss the Seventh Cause of Action for violation of 42 U.S.C. § 1983 because of Defendant Sinclair’s violations of Section 504 of the Rehabilitation Act and Title II of the ADA by “threatening Plaintiff due to his disability and causing Plaintiff to face harsh and unreasonable discipline and forcible removal from school by the police on account of his disability” on the ground of qualified immunity from liability for damages.

Qualified immunity serves to shield government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982). In Pearson v. Callahan, — U.S. -, 129 S.Ct. 808 , 172 L.Ed.2d 565 (2009), the Supreme Court summarized the purpose of qualified immunity:

Deciding qualified immunity normally entails a two-step analysis. Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). First, “taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers’ conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 150 L.Ed.2d 272 (2001). If the court determines that the conduct did not violate a constitutional right, the inquiry is over and the officer is entitled to qualified immunity. However, if the court determines that the conduct did violate a constitutional right, Saucier’s second prong requires the court to determine whether, at the time of the violation, the constitutional right was “clearly established.” Id. “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 202, 121 S.Ct. 2151 . This inquiry is wholly objective and is undertaken in light of the totality of the specific factual circumstances of each case. Id. at 201, 121 S.Ct. 2151 . Even if the violated right is clearly established, Saucier recognized that, in certain situations, it may be difficult for a police officer to determine how to apply the relevant legal doctrine to the particular circumstances he faces. If an officer makes a mistake in applying the relevant legal doctrine, he is not precluded from claiming qualified immunity so long as the mistake is reasonable. If “the officer’s mistake as to what the law requires is reasonable, ... the officer is entitled to the immunity defense.” Id. at 205, 121 S.Ct. 2151 . In Pearson , the Supreme Court ruled that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Pearson, id. at 818. “The judges of the district courts and the courts of appeal should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id. In Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596 , 160 L.Ed.2d 583 (2004), the Supreme Court reiterated:

It is important to emphasize that this inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ Id., at 201, 121 S.Ct. 2151 . As we previously said in this very context:

543 U.S. at 198-199 , 125 S.Ct. 596 . However, as explained in Wilkins v. City of Oakland, 350 F.3d 949, 956 (9th Cir.2003), cert. denied sub nom. Scarrot v. Wilkins, 543 U.S. 811 , 125 S.Ct. 43 , 160 L.Ed.2d 14 (2004):

Defendant Sinclair argues that there is no law that clearly establishes a violation of the ADA or Section 504 or any other federal law to contact the police when a student becomes completely unresponsive and fails to follow directions from school officials.

Plaintiff argues that Ninth Circuit precedent establishes clear limitations on a school officials discretion to punish a student. Plaintiff argues that Defendant Sinclair’s alleged conduct is comparable to the principal who taped a second-grader to a tree for failure to comply with a “timeout,” Doe ex rel. Doe, supra, 334 F.3d 906 , to the teacher who force-fed a disabled student food he was allergic to, Witte, supra, 197 F.3d at 1272-73 , and to school officials who condoned the pepper-spraying and handcuffing of an autistic child, Banks, supra, 2005 WL 2233213 . Plaintiff contends that “[s]uch actions shock the conscience and, especially at the pleading stage, support a violation of a clearly established right.” Plaintiff cites Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir.2007):

Defendant Sinclair replies that Plaintiff “stretches the bounds of credibility by arguing that the simple Act of notifying the police” is comparable to the facts in the cases cited by Plaintiff. Defendant Sinclair notes that there is no allegation that she did anything other than contact the police.

The cases Plaintiff relies on are simply not comparable. Doe ex rel. Doe, supra, 334 F.3d at 910 , held:

Here, there is no allegation that Defendant Sinclair used any force whatsoever on Plaintiff. She merely threatened to and then did, call the police. District Defendants’ motion to dismiss the Seventh Cause of Action as to Defendant Sinclair on the ground of qualified immunity from liability under Section 1983 is GRANTED WITHOUT LEAVE TO AMEND.

C. DISTRICT DEFENDANTS’ MOTION TO STRIKE.

District Defendants move to strike the prayer for punitive damages.

Plaintiff concedes that punitive damages are not available against the School District.

Defendant Sinclair moves to strike the prayer for punitive damages in connection with the Fourth Cause of Action for intentional infliction of emotional distress. Defendant Sinclair relies on the Paul D. Coverdell Teacher Protection Act of 2001, 20 U.S.C. § 6731 et seq., and specifically Section 6736(c)(1):

Defendant Sinclair argues that the Complaint fails to plead any facts demonstrating her willful or criminal misconduct or conscious, flagrant indifference to the rights or safety of Plaintiff. Defendant Sinclair contends that the allegation in the Fourth Cause of Action that her decision to contact the police was done “maliciously, fraudulently, and oppressively, in bad faith, with the wrongful intent of injuring PLAINTIFF, and in conscious disregard to PLAINTIFF’S rights” is insufficient because there are no facts “establishing anything of the kind.”

Plaintiff responds that the facts of the Complaint, when read as a whole, establish the willful and conscious disregard of Plaintiffs rights necessary to support an award of punitive damages:

Plaintiff contends that the prayer for punitive damages arises from these allegations.

Defendant Sinclair replies by citing Crawford-El and contends that Plaintiff is required to plead “specific, nonconclusory allegations” that establish improper motive.

Whether Plaintiff is entitled to punitive damages against Defendant Sinclair in connection with the Fourth Cause of Action for intentional infliction of emotional distress.

District Defendants’ motion to strike is GRANTED IN PART AND DENIED IN PART.

D. CITY DEFENDANTS’ MOTION TO DISMISS.

1. Qualified Immunity.

Defendants McIntosh and Prock move to dismiss the Eighth Cause of Action for excessive force in violation of Section 1983 on the ground of qualified immunity. The Eighth Cause of Action alleges that Defendants McIntosh and Prock “subjected Plaintiff to unreasonable seizure of his person without reasonable or probable cause,” that they “wrongfully caused Plaintiff to be restrained, arrested, confined, and/or detained, which amounted to a seizure of Plaintiffs person,” and that they “intentionally effected this seizure of Plaintiff by use of unlawful and excessive force against him.”

In so moving, Defendants assert:

Plaintiff objects that none of these facts are alleged in the Complaint and no declaration is provided to substantiate them.

The Court cannot rely on Defendants’ factual representations in their motion to dismiss. A motion to dismiss must be resolved on the allegations made in the Complaint. All the Complaint alleges is that “Chief of Police Mace McIntosh, Officer Hall Prock, and Officer Bowly responded to Sonora Elementary School to respond to the report of the ‘out of control’ juvenile who was allegedly causing a dis turbance at the school,” and that “[u]pon locating C.B. on the school grounds, the police encountered C.B., an eleven year old student, who was not acting in any disruptive or disruly manner but rather sitting quietly on a bench with his head down.”

Plaintiff argues that California and Ninth Circuit case law clearly indicate that handcuffing an otherwise lawfully detained individual, when that individual poses no flight risk or danger to officers, transforms the detention into an unlawful arrest and seizure.

Plaintiff cites People v. Stier, 168 Cal.App.4th 21 , 85 Cal.Rptr.3d 77 (2008), a criminal appeal in which the Court held that the defendant’s consent to search after being handcuffed was not voluntary. The evidence established that the officer handcuffed a narcotics suspect during a traffic stop because the suspect was four to five inches taller than the officer and the officer felt uncomfortable about the height differential even though the suspect was very cooperative and docile. The Court of Appeal stated:

Plaintiff also cites In re Antonio B., 166 Cal.App.4th 435, 442 , 82 Cal.Rptr.3d 693 (2008):

See also Washington v. Lambert, 98 F.3d 1181, 1188 (9th Cir.1996); Baldwin v.

Placer County, 418 F.3d 966, 970 (9th Cir.2005).

Plaintiff argues:

City Defendants reply that the cases upon which Plaintiff relies are distinguishable because “Officer Prock was transporting C.B. in a police vehicle where Mr. Prock is the only officer available to drive the car, and no other officer is in the vehicle to maintain control over C.B.” City Defendants contend:

City Defendants’ position is based on facts not alleged in the Complaint. It is unclear exactly when C.B. was handcuffed and, as noted above, the information allegedly given the police when they arrived is unknown, other than they were responding to a report of an out of control student, is unknown. Generally, police vehicles have built into them barriers and restraints to keep officers and their passengers safe, i.e., no inside door handles in the back seat and a grill separating the passenger seat from the front seat, whether those were available on Officer Prock’s vehicle is unknown. Also unknown is why the third officer, Bowly, did not accompany Officer Prock. Plaintiffs counsel has filed a declaration in which she avers that she can amend the Complaint to allege that Plaintiff was restrained in handcuffs for over thirty minutes, that the handcuffs hurt his wrists, that he was left handcuffed near a ball box on the playground visible to staff, students and passers-by, that Officer Prock told Plaintiff he had been a police officer for many years and had never handcuffed an eleven year old for doing nothing, and that three police cars responded to the school, that, at the time he was handcuffed, he was surrounded by four or more adults and located in a fenced-in area of the school grounds.

City Defendants’ motion to dismiss on the ground of qualified immunity is DENIED WITHOUT PREJUDICE. Plaintiff is ordered to file an amended complaint setting forth the specific facts regarding handcuffing upon which he relies in contending that he was subjected to excessive force in violation of his constitutional rights.

2. Supervisor Liability.

City Defendants move to dismiss all causes of action against Defendant McIntosh on the ground that he is not liable as a supervisor.

In a Section 1983 action, respondeat superior, or vicarious liability, may not be imposed in the absence of a state law imposing such liability. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir.1991), cert. denied, 502 U.S. 1074 , 112 S.Ct. 972 , 117 L.Ed.2d 137 (1992). However, “ ‘[a] supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation.’ ” Id. “Supervisory liability exists even without overt personal participation in the offensive Act if supervisory officials implement a policy so deficient that the policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of the constitutional violation.’ ” Hansen v. Black, 885 F.2d 642, 646 (9th Cir.1989).

Defendant McIntosh acknowledges the allegations in the Complaint that he was present at the school and that he directed Officer Prock to place Plaintiff in handcuffs. Defendant argues that, as contended above, none of the conduct of Officer Prock or Defendant McIntosh resulted in a constitutional violation of Plaintiffs rights, there can be no supervisory liability attributed to Defendant McIntosh.

City Defendants’ motion to dismiss on this ground is DENIED WITHOUT PREJUDICE. This ground for dismissal fails because qualified immunity cannot be determined on the record before the Court. City Defendants may, if they wish, renew this motion upon the filing by Plaintiff of his amended complaint.

3. Monell Liability.

The City of Sonora moves to dismiss on the ground that, because the officers did not violate Plaintiffs constitutional rights, there can be no Monell liability.

City Defendants’ motion to dismiss on this ground is DENIED WITHOUT PREJUDICE. This ground for dismissal fails because qualified immunity cannot be determined on the record before the Court. City Defendants may, if they wish, renew this motion upon the filing by Plaintiff of his amended complaint.

4. More Definite Statement.

City Defendants move for a more definite statement with regard to the Complaint’s allegations that the officers’ actions were malicious, oppressive, fraudulent and in bad faith are not supported by specific facts. City Defendants cite Crawford-El v. Britton, 523 U.S. 574 , 118 S.Ct. 1584 , 140 L.Ed.2d 759 (1998).

In Crawford-El , the Supreme Court held that a plaintiff bringing a constitutional action against government officials for damages, for which an official’s improper motive is a necessary element, need not adduce clear and convincing evidence of improper motive in order to defeat an official’s motion for summary judgment. The Supreme Court then stated:

523 U.S. at 597-598 , 118 S.Ct. 1584 .

City Defendants’ motion for more definite statement is DENIED WITHOUT PREJUDICE. City Defendants may, if they wish, renew this motion upon the filing by Plaintiff of his amended complaint.

CONCLUSION

For the reasons stated:

1. District Defendants’ motion to dismiss is GRANTED IN PART WITH LEAVE TO AMEND, GRANTED IN PART WITHOUT LEAVE TO AMEND, AND DENIED IN PART;

2. District Defendants’ motion to strike is GRANTED IN PART AND DENIED IN PART;

3. City Defendants’ motion to dismiss is DENIED WITHOUT PREJUDICE;

4. Plaintiff shall file a First Amended Complaint in accordance with the rulings in this Memorandum Decision and Order within 30 days of the filing date of this Memorandum Decision and Order.

IT IS SO ORDERED.

. Many courts faced with this issue have dismissed federal claims based on the failure to exhaust administrative remedies under the IDEA and then declined to exercise supplemental jurisdiction over the remaining state law claims. See, e.g., S.M. v. West Contra Costa County Unified School Dist., 2007 WL 108456 , *4 (N.D.Cal.2007); Brown v. Napa Valley Unified School Dist., 2007 WL 2028201, *4 (N.D.Cal.2007); Fraser v. Tamalpais Union High School Dist., 2006 WL 1348427 , *5 (N.D.Cal.2006); Payne v. Peninsula School Dist., 2007 WL 128884 , *4 (W.D.Wash.2007). . District Defendants described the statute as the “No Child Left Behind Act of 2001.” However, the correct name of the Act is as stated above. . California Civil Code § 51(b) provides that "[a]ll persons within the jurisdiction of this state are free and equal, and no matter what their ... disability ... are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Section 51(f) provides that ”[a] violation of the right of any individual under the Americans with Disabilities Act of 1990 shall also constitute a violation of this section.” California Civil Code § 51.5(a) provides: "No business establishment of any kind whatsoever shall discriminate against ... any person in this state on account of any characteristic listed or defined in subdivision (b) ... of Section 51 ....” California Civil Code § 54(a) provides that "[¡Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of ... public buildings ..., public facilities, and other.public places.” Section 54(c) provides that "[a] violation of the right of an individual under the Americans with Disabilities Act of 1990 also constitutes a violation of this section.” . District Defendants moved to strike the prayer for punitive damages against Defendant Sinclair in connection with the Seventh Cause of Action for violation of Section 1983. Because the Seventh Cause of Action is dismissed against Defendant Sinclair on the ground of qualified immunity, this aspect of the motion to strike is moot. . Although City Defendants move to dismiss all causes of action, their authority and analysis is limited to Section 1983. They present no authority supporting dismissal of the causes of action for false imprisonment, battery, and intentional infliction of emotional distress.