
    Jose FUNEZ, guardian ad litem for Aldo FUNEZ, Plaintiff, v. Cruz Bolanos GUZMAN; Luz Armando Barbosa, Armando Barbosa, and Maria Barbosa; Alonzo Campos, Martin Campos, and John Doe 2; Francisco Javiar Campos Chavarria, Juan Campos, and Guadalupe Chavarria; Hernan Cornejo, Manuel Cornejo-Olmeda, and Carmela Cornejo; J.L.; Ignacio Lara-Vasquez and Maria Guadalupe Lara; L.L.; Jose Magana-Macias, Irineo Munoz-Magana, and Juana Magana-Macias; Ruben Mendoza-Uvalle, Jorge Mendoza, and Guillermina Mendoza; Juan Quintana-Roque, Juan Quintana-Ocampo, and Alejandra Quintana; and Hood River County School District, an Oregon public school district, Defendants.
    No. 09-CV-562-BR.
    United States District Court, D. Oregon.
    Dec. 15, 2009.
    
      Andrew W. Carter, Dunn Toole Carter & Coats LLP, The Dalles, OR, for Plaintiff.
    Meredith D. Van Valkenburgh, Van Valkenburgh & Associates, P.C., The Dalles, OR, for Defendants Cruz B oíanos Guzman, Luz Armando Barbosa, Armando Barbosa, Maria Barbosa, Aonzo Campos, Martin Campos, John Doe 2, Hernán Cornejo, Manuel Cornejo-Olmeda, Carmela Cornejo, J.L., Ignacio Lara-Vasquez, Maria Guadalupe Lara, L.L., Jose MaganaMacias, Irineo Munoz-Magana, and Juana Magana-Maeias.
    James M. Habberstad, The Dalles, OR, for Defendants Ruben Mendoza-Uvalle, Juan Quintana-Roque, Juan Quintana-Ocampo, and Alejandra Quintana.
    Ronald W. Downs, Special Districts Association, J. Channing Bennett, Garrett Hemann Robertson, PC, Salem, OR, for Defendant Hood River County School District.
   OPINION AND ORDER

BROWN, Judge.

This matter comes before the Court on Defendant Hood River County School District’s Motion to Dismiss (# 40). For the reasons that follow, the Court GRANTS in part and DENIES in part Defendant’s Motion.

BACKGROUND

The following facts are taken from Plaintiffs Complaint which the Court construes in the light most favorable to Plaintiff:

During the relevant period, Plaintiff Aldo Funez was a minor and student at Hood River Valley High School where he received special education services because he is disabled. On May 25, 2006, Plaintiff was struck, kicked, and punched by Defendants Cruz Bolanos Guzman, Luz Armando Barbosa, Alonzo Campos, Francisco Javiar Campos Chavarria, J.L., L.L., Jose Magana-Macias, Ruben Mendoza-Uvalle, and Juan Quintana-Roque (Student Defendants) while Plaintiff and Student Defendants were under the care and supervision of Defendant Hood River County School District (Hood River).

As a result of the acts of the Student Defendants, Plaintiff sustained cuts, bruises, and internal injuries, which resulted in extensive surgery and his hospitalization from May 26, 2006, to June 4, 2006.

On May 21, 2009, Plaintiff filed a Complaint in this Court in which he brings claims (1) against Student Defendants for battery; (2) against Defendants Armando Barbosa, Maria Barbosa, Martin Campos, John Doe 2, Juan Campos, Guadalupe Chavarria, Manuel Cornejo-Olmeda, Carmela Cornejo, Ignacio Lara-Vasquez, Maria Guadalupe Lara, Irineo MunozMagana, Juana Magana-Macias, Jorge Mendoza, Guillermina Mendoza, Juan Quintana-Oeampo, and Alejandra Quintana (Parent Defendants) for parental liability under Oregon Revised Statute § 30.765; (3) against Defendant Hood River for negligence; (4) against Defendant Hood River for denial of Plaintiffs right to a free and appropriate public education (FAPE) pursuant to 42 U.S.C. § 1983; (5) against Defendant Hood River for violation of Plaintiffs right to equal protection under the Fourteenth Amendment of the United States Constitution pursuant to 42 U.S.C. § 1983; and (6) against Defendant Hood River for deprivation of Plaintiffs right to substantive due process under the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983.

Hood River moves to dismiss Plaintiffs claims against it on the grounds that Plaintiffs negligence claim is time-barred; Plaintiff failed to exhaust his administrative remedies under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1415(Z); Plaintiff has not alleged a custom or policy that caused a constitutional deprivation pursuant to Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); and Plaintiff failed to state a claim for violation of his rights to equal protection and substantive due process.

STANDARDS

Dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim is proper only if the pleadings fail to allege sufficient facts to establish a plausible entitlement to relief. Bell Atlantic v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

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 “entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Intri-Plex Tech., Inc. v. Crest Group, Inc., 499 F.3d 1048, 1050 n. 2 (9th Cir.2007).

DISCUSSION

As noted, Hood River moves to dismiss Plaintiffs claims against it on the grounds that Plaintiffs negligence claim is time-barred, Plaintiff failed to exhaust his administrative remedies under the IDEA, Plaintiff has not adequately alleged a custom or policy that caused a constitutional deprivation, and Plaintiff has failed to state a claim for violation of his rights to equal protection and substantive due process.

I. Plaintiffs negligence claim is not time-barred.

Hood River contends Plaintiffs negligence claim is time-barred because he filed it more than two years after he was injured and, therefore, beyond the statute of limitations period provided under the Oregon Tort Claims Act (OTCA). Plaintiff, however, contends the limitations period was tolled during the time he was a minor, and, in addition, he filed this action within two years of reaching the age of majority.

A. The Law

Pursuant to the OTCA,

[t]he sole cause of action for any tort of officers, employees or agents of a public body acting within the scope of their employment or duties ... shall be an action against the public body only. The remedy provided by [the OTCA] is exclusive of any other action or suit against any such officer, employee or agent of a public body whose act or omission within the scope of the officer’s, employee’s or agent’s employment or duties gives rise to the action or suit. No other form of civil action or suit shall be permitted.

Oregon Revised Statute § 30.265(1).

The OTCA contains a two-year limitations period as follows:

Except as provided in ORS 12.120, 12.135 and 659A.875, but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of [the OTCA] shall be commenced within two years after the alleged loss or injury.

Oregon Revised Statute § 30.275(9). The parties do not dispute Plaintiffs negligence claim against Hood River is governed by the OTCA nor that the OTCA does not contain a specific provision tolling the limitations period for minors. Plaintiff, however, asserts the tolling provision of Oregon Revised Statute § 12.160 applies to the OTCA, and, therefore, the limitations period was tolled until Plaintiff reached the age of majority on May 25, 2007. Hood River contends § 12.160 does not toll, the limitations period provided under the OTCA. To support its position, Hood River relies on Cooksey v. Portland Public School District No. 1, 143 Or.App. 527, 923 P.2d 1328 (1996); Lawson v. Coos County School District No. 13, 94 Or.App. 387, 765 P.2d 829 (1988); and Pelster v. Walker, 185 F.Supp.2d 1174 (D.Or.2001).

B. Analysis

At the time Plaintiff suffered his injury, Oregon Revised Statute § 12.160 provided in pertinent part:

If, at the time the cause of action accrues, any person entitled to bring an action mentioned in ORS 12.010 to 12.050, 12.070 to 12.250 and 12.276 is within the age of 18 years or insane, the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended ... in any case longer than one year after such disability ceases.

Or.Rev.Stat. § 12.160(2006). In Cooksey and Lawson, the Oregon Court of Appeals held § 12.160 did not toll the two-year limitations period of the OTCA. 143 Or. App. at 533-34, 923 P.2d 1328, 94 Or.App. at 390, 765 P.2d 829. The court found “the examination of the text [of § 30.275] in context is dispositive.” Cooksey, 143 Or. App. at 533, 923 P.2d 1328. The court concluded the limitations period set out in 30.275(9) applied “(1) notwithstanding any other provision of ORS chapter 12 and (2) notwithstanding any other statute providing a limitation on the commencement of an action.” Lawson, 94 Or.App. at 390, 765 P.2d 829 (emphasis in original). The court also noted

[t]hat reading of the statute is borne out by its context. ORS 30.275(2) establishes a 180-day notice period for tort claims brought against a public body, subject to a limited exception-up to an additional 90 days-for “minority, incompetency or other incapacity.” Thus, it is clear that when the legislature wanted to include exceptions for minor plaintiffs it did so. It did not do so in ORS 30.275(8).

Id.

Under the reasoning of Cooksey and Lawson, Plaintiffs negligence claim would be untimely because Plaintiff filed his claim for negligence nearly three years after his injuries. As Plaintiff notes, however, the Oregon Supreme Court in Baker v. City of Lakeside called into question the reasoning of the Cooksey and Lawson courts. See 343 Or. 70, 164 P.3d 259 (2007).

In Baker the plaintiff filed a complaint under the OTCA against the defendant within the limitations period of Oregon Revised Statute § 30.275(9), but she did not serve the summons on defendant until after the limitations period. 343 Or. 70 at 72, 164 P.3d 259. Under Oregon Revised Statute § 12.020(1), a plaintiff commences an action against a defendant only after she both files the complaint and serves the summons. The defendant, therefore, moved to dismiss the plaintiffs action as untimely. Id. The plaintiff, however, noted Oregon Revised Statute § 12.020(2) provides that an action “shall be deemed to have been commenced” on the date the plaintiff filed the complaint if the plaintiff served the summons on the defendant within 60 days. Accordingly, the plaintiff contended § 12.020(2) applied, and, therefore, her complaint was timely. Id. The court examined the interaction between the limitations period of the OTCA at § 30.275(9) and the savings provision of § 12.020(2) and found

[n]othing in the legislative history suggests that the legislature intended to depart from the longstanding rule of procedure found in ORS 12.020(2), nor does it suggest that the legislature intended to deny children and persons with mental disabilities bringing OTCA claims the advantage of a tolling provision that is available to them in every other action.

Id. at 82-83, 164 P.3d 259. Ultimately, the court held:

Considering the text, context, and legislative history of ORS 30.275(9), we hold that the notwithstanding clause in ORS 30.275(9) applies only to those provisions of ORS chapter 12 and other statutes that provide a limitation on the commencement of an action. The notwithstanding clause does not bar application of ORS 12.020 to OTCA claims. Because plaintiff filed her complaint within two years of the accident and served the city within 60 days of filing her complaint, her complaint was timely under ORS 12.020(2).

Id. at 83,164 P.3d 259.

Oregon Revised Statute § 12.160 also does not provide a limitation on the commencement of an action, and, therefore, the holding in Baker suggests the “notwithstanding” clause of § 30.275(9) does not bar application of § 12.160. That interpretation is further supported by the Oregon Supreme Court’s suggestion that the legislative history of § 30.275(9) does not establish the legislature intended to deny minors the advantage of the tolling provision of § 12.160.

Nevertheless, Hood River maintains that, because the Baker court addressed only the applicability of § 12.020(2) to the limitations period of § 30.275(5), the court’s holding should not be read to have a broader interpretation. Hood River also notes in 2008, subsequent to the decision in Baker, the Oregon legislature amended § 12.160(1) to provide in pertinent part:

If a person is entitled to bring an action that is subject to the statutes of limitation prescribed by ORS 12.010 to 12.050, 12.070 to 12.250 or 12.276, and at the time the cause of action accrues the person is a child who is younger than 18 years of age, the statute of limitation for commencing the action is tolled for so long as the person is younger than 18 years of age.

According to Hood River, this amendment suggests the legislature “corrected the Baker court’s question whether the legislature may have intended to apply the ORS 12.160 tolling provision to claims brought under the OTCA.” Even if Hood River’s interpretation is correct, however, the legislature did not specify in the 2008 legislation that the revised § 12.160 was retroactive. Accordingly, Plaintiffs negligence claim is governed by the 2006 version of § 12.160, and this Court is bound by the Oregon Supreme Court’s interpretation of the provision at that time. See S.D. Myers, Inc. v. City and County of San Francisco, 253 F.3d 461, 473 (9th Cir.2001) (“When interpreting state law, we are bound by decisions of the state’s highest court.”). Thus, the Court concludes the tolling provision of § 12.160 as it existed in 2006 applies to Plaintiffs negligence claim.

Accordingly, Plaintiffs negligence claim is not time-barred because Plaintiff filed this action within two years of reaching the age of majority, and the Court denies Hood River’s Motion to Dismiss as to Plaintiffs negligence claim against Hood River.

II. Plaintiff is not required to exhaust his administrative remedies under the IDEA as to his § 1983 claim for deprivation of a free and appropriate education.

In his Complaint, Plaintiff brings a claim under 42 U.S.C. § 1983 alleging Hood River engaged in a “dangerous lack of adequate supervision of students [that it] knew or should have known would result in the deprivation of [Plaintiffs] right to a free and appropriate public education (Free Appropriate Education) due him by virtue of his status as a student with disabilities as provided for in the federal Indivictuals with Disabilities Education Act (IDEA).”

Hood River moves to dismiss Plaintiffs claim on the ground that Plaintiff failed to exhaust his administrative remedies under the IDEA. Plaintiff, however, asserts he is not required to exhaust the IDEA’S administrative remedies because he seeks only monetary damages for past physical injuries.

A. The Law

Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

To establish a claim under § 1983, a plaintiff must initially allege “(1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of a constitutional right.” L.W. v. Grubbs (Grubbs I), 974 F.2d 119, 120 (9th Cir.1992).

The IDEA requires state and local agencies receiving federal funds to “establish and maintain procedures in accordance with this section to ensure that children with disabilities and their parents are guaranteed procedural safeguards with respect to the provision of a free appropriate public education by such agencies.” 20 U.S.C. § 1415(a).

The IDEA requires a parent or guardian who believes a state agency has deprived a student of a FAPE to request a due-process hearing. The IDEA provides:

Nothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this subchapter.

20 U.S.C. § 1415(Z). Thus, the exhaustion requirement of the IDEA applies even when an action is brought pursuant to a different statute as long as the party is seeking relief that is also available under the IDEA.

B. Analysis

As noted, Hood River moves to dismiss Plaintiffs § 1983 claim for failure to provide a FAPE under the IDEA on the ground that Plaintiff did not exhaust the IDEA administrative remedies. Hood River relies on Robb v. Bethel School District No. #403, 308 F.3d 1047 (9th Cir. 2002), to support its contention.

In Robb the Ninth Circuit concluded a party may not avoid the exhaustion requirement of the IDEA by seeking only monetary relief. Id. at 1050 (9th Cir. 2002). The court noted:

The dispositive question generally is whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA’S administrative procedures and remedies. If so, exhaustion of those remedies is required.... Where the IDEA’S ability to remedy a particular injury is unclear, exhaustion should be required to give educational agencies an initial opportunity to ascertain and alleviate the alleged problem.

Id. The plaintiff in Robb sought damages to compensate her for lost educational opportunities and emotional distress as a result of the defendant removing the plaintiff from her classroom repeatedly for peer-tutoring by other students without the supervision of a teacher. Id. at 1048. The court noted the plaintiff did not attempt to exhaust her administrative remedies under the IDEA and concluded the plaintiffs injury (ie., lost educational opportunities) could be remedied by procedures available under the IDEA. Id. at 1050. In addition, the plaintiff conceded at oral argument that the peer-tutoring program was at least “an attempt at an educational program.” Id. at 1052 n. 3. In Witte v. Clark County School District, however, the plaintiff, a ten-year-old boy with Tourette’s Syndrome alleged he had been force-fed oatmeal even though he was allergic to it; strangled; tackled and held to the ground repeatedly; made to run on a treadmill set at high speed with weights strapped to his ankles; deprived of meals; sprayed in the face with water; and forced to stay outside on the patio without food or water because of his disabilities. 197 F.3d 1271, 1273 (9th Cir.1999). Ultimately the plaintiff was moved to a different school through an agreement with the school district. Id. at 1275. The plaintiff then filed an action seeking monetary damages. The Ninth Circuit concluded the plaintiff did not have to exhaust his administrative remedies under the IDEA and noted the plaintiff had engaged in some process with the school district, the plaintiff sought only retrospective monetary damages, and the plaintiffs allegations “center[ed] around physical abuse and injury.” Id. at 1276. The Ninth Circuit found “[t]he remedies available under the IDEA would not appear to be well suited to addressing past physical injuries adequately; such injuries typically are remedied through an award of monetary damages.” Id.

The Ninth Circuit distinguished Robb from Witte by noting the plaintiff in Witte had already engaged in at least a portion of the IDEA process with the school district before bringing her action, and, in addition, “neither the source nor the nature of the plaintiffs alleged injuries [in Witte] was educational.” Id. at 1053 n. 3. Finally, unlike in Witte, the plaintiff in Robb did not allege past physical injuries. Thus, in Robb, the Ninth Circuit concluded the plaintiff was required to exhaust her administrative remedies under the IDEA before bringing an action under § 1983.

Plaintiff contends the facts in this matter are more similar to those in Witte rather than to those in Robb, and, therefore, Plaintiff asserts he should not have to exhaust the administrative remedies of the IDEA before bringing a § 1983 claim for denial of FAPE. The Court agrees. Although here Plaintiff does not allege he engaged in any process with Hood River as the plaintiff in Witte did with his school district, Plaintiff seeks only retrospective monetary damages for past physical injuries. In addition, unlike in Robb, “neither the source nor the nature of the plaintiffs alleged injuries was educational.” Robb, 308 F.3d at 1052 n. 3.

Accepting as true the allegations in Plaintiffs Complaint and construing them in favor of Plaintiff, the Court concludes Plaintiff is not required to exhaust the administrative remedies of the IDEA before bringing his claim under § 1983 for failure to provide a FAPE. Accordingly, the Court denies Hood River’s Motion to Dismiss for failure to exhaust administrative remedies as to Plaintiffs claim against Hood River for failure to provide a FAPE.

III. Plaintiff has not adequately alleged the elements of a Monell claim.

A. The Law

Section 1983 liability of a local governing body arises only when “action pursuant to official ... policy of some nature caused a constitutional tort” and not on the basis of respondeat superior. Monell, 436 U.S. at 691-94, 98 S.Ct. 2018 (1978). “The ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible.” Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986) (emphasis in original). The circumstances in which “Monell” liability may be found under § 1983 are “carefully circumscribed.” Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir.1995).

One of the ways in which an individual may assert a claim against a public body such as a school district under § 1983 is to assert (1) the plaintiff was deprived of a constitutional right, (2) the school district had a policy or custom, (3) the policy or custom amounted to deliberate indifference to the plaintiffs constitutional rights, and (4) the policy or custom was the moving force behind the constitutional violation the plaintiff sustained. See Mabe v. San Bernardino County, Dep’t of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001). See also Plumeau v. Sch. Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir.1997) (analyzing school district’s liability pursuant to Monell under § 1983) and Harry A. v. Duncan, 234 Fed.Appx. 463, 464-65 (9th Cir.2007) (same).

B. Analysis

As noted, Hood River contends Plaintiff has not adequately alleged Hood River had a custom or policy that deprived Plaintiff of any constitutional right. In his Complaint, Plaintiff alleges in pertinent part:

21.
The area within the school premises where the assault occurred was an area where minority (by race and/or ethnicity) students were allowed to congregate before class without proper supervision.
22.
Defendant HOOD RIVER COUNTY SCHOOL DISTRICT was aware of facts alleged in paragraph [21] above and intentionally or deliberately failed to remedy the situation. This failure was substantially due to the fact of the students minority status.
38.
Defendant HOOD RIVER COUNTY SCHOOL DISTRICT’S conduct under state law was with knowledge and deliberate disregard of:
(a) The dangerous lack of adequate supervision of minority students as described above, which was based partially on the minority status of the students resulting in a deprivation of ALDO FU-NEZ’s equal protection rights under the 14th Amendment of the United States Constitution.
(b) The dangerous lack of adequate supervision of students which Defendant HOOD RIVER COUNTY SCHOOL DISTRICT knew or should have known would result in the deprivation of ALDO FUNEZ’s right to a free aid appropriate public education (Free Appropriate Education) due him by virtue of his status as a student with disabilities as provided for in the federal Individuals with Disabilities Education Act (IDEA).
(c) The inadequate supervision which posed a risk of deprivation of ALDO FUNEZ’s due process rights as provided for under Amendment 14 of the United States Constitution.
Defendant HOOD RIVER COUNTY SCHOOL DISTRICT exacerbated such risks through its action and/or inaction.
39.
As a direct and foreseeable result of Defendant HOOD RIVER COUNTY SCHOOL DISTRICT’S negligence, ALDO FUNEZ was damaged.

Compl. ¶¶ 21-22, 38-39. Although these allegations do not contain any mention of an official policy, practice, or custom on the part of Hood River that deprived Plaintiff of his constitutional rights, Plaintiff, nevertheless, contends he sufficiently pled the basis for such a claim. Plaintiff relies on Evans v. McKay, 869 F.2d 1341 (9th Cir.1989), to support his contention.

In Evans the Ninth Circuit held “[i]t is improper to dismiss on the pleadings alone a section 1983 complaint alleging municipal liability, even if the claim is based on nothing more than a bare allegation that the individual officers’ conduct conformed to official policy, conduct or practice.” Id. at 1349 (citing Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir.1988), and Shah v. County of Los Angeles, 797 F.2d 743, 747 (9th Cir.1986)). The Court notes the Ninth Circuit decided Evans before Twombly, which sets a more stringent pleading standard than was the rule at the time Evans was decided. In any event, Plaintiffs Complaint does not contain even a “bare allegation” that the conduct at issue conformed to an official policy, conduct, or practice established by Hood River.

In addition, the Court notes although Plaintiff asserts in ¶ 22 of his Complaint that Hood River deliberately failed to remedy the fact that “minority ... students were allowed to congregate before class without proper supervision” in a particular area, Plaintiff alleges in ¶ 39 that his injury was the result of Hood River’s negligence. The Supreme Court and the Ninth Circuit have made clear that when a plaintiff seeks to establish municipal liability under § 1983, the plaintiff “must demonstrate that the municipal action was taken with ‘deliberate indifference’ as to its known or obvious consequences.” Bd. of County Comm’rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 407, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Simple negligence or even heightened negligence is not a sufficient basis to impose liability on a municipality. Id. See also Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) (same); Alfrey v. United States, 276 F.3d 557, 568 (9th Cir.2002) (same). At a minimum, therefore, Plaintiff must limit his Monell allegations to facts showing “deliberate indifference” and not rely in any way on alleged acts of negligence to support his Monell claim.

The Court, therefore, concludes Plaintiff has not adequately pled the custom, policy, or practice element of a Monell claim or adequately alleged Hood River’s intent. Accordingly, the Court grants Hood River’s Motion to Dismiss as to Plaintiffs Monell claims against Hood River.

IV. Plaintiff has not adequately pled a violation of his right to equal protection under the United States Constitution.

Even if the Court had found Plaintiff adequately pled the elements of a Monell claim against Hood River, the Court concludes Plaintiff did not adequately plead that a basis for such a claim is that Hood River denied his right to equal protection under the United States Constitution.

A. The Law

“To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based on his membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir.2001). To state a claim for violation of his right to equal protection, Plaintiff must allege

(1) [Hood River] treated [him] differently from others similarly situated; (2) this unequal treatment was based on an impermissible classification; (3) [Hood River] acted with discriminatory intent in applying this classification; and (4)[P]laintiff suffered injury as a result of the discriminatory classification.

T.A. ex rel. Amador v. McSwain Union Elementary Sch. Dist., No. CV-F-08-1986 OWW/DLB, 2009 WL 1748793, at *10 (E.D.Cal. June 18, 2009) (quotation omitted).

B. Analysis

Plaintiff contends he has adequately pled an equal-protection claim and relies on the following allegations of his Complaint:

15.
At all times material, defendant HOOD RIVER COUNTY SCHOOL DISTRICT was a duly authorized Oregon State public school district within the State of Oregon; its offices being found in the city of Hood River, Hood River county, Oregon; its functions and responsibilities including the supervision and protection of students attending public schools in Hood River County, Oregon, at all times material acting under the color of state law.
18.
At all times material ALDO FUNEZ and Student Defendants were and are members of a racial/ethnic minority group.
19.
At all times material Hood River valley High School was and is a school exclusively operated and controlled by Defendant HOOD RIVER VALLEY SCHOOL DISTRICT.
20.
On approximately May 25,2006, while attending Hood River Valley High School, ALDO FUNEZ was struck, kicked and punched by student Defendants, who were under the care and supervision of Defendant HOOD RIVER COUNTY SCHOOL DISTRICT.
21.
The area within the school premises where the assault occurred was an area where minority (by race and/or ethnicity) students were allowed to congregate before class without proper supervision.
22.
Defendant HOOD RIVER COUNTY SCHOOL DISTRICT was aware of facts alleged in paragraph [21] above and intentionally or deliberately failed to remedy the situation. This failure was substantially due to the fact of the students minority status.

Plaintiff, however, fails to allege specific facts from which it may be inferred that he was treated differently from others similarly situated and that his unequal treatment was based on an impermissible classification. In addition, even if Hood River treated Plaintiff differently, it is not clear how that treatment resulted in the alleged violation of his right to equal protection.

The Court, therefore, concludes, Plaintiff has not adequately pled a claim for violation of his right to equal protection under the United States Constitution. Accordingly, the Court grants Hood River’s Motion to Dismiss as to Plaintiffs § 1983 claim against Hood River for violation of his right to equal protection under the United States Constitution.

V. Plaintiff has not adequately pled a violation of his right to due process under the United States Constitution.

Plaintiff also brings a Monell claim against Hood River pursuant to § 1983 for an alleged violation of his right to due process under the United States Constitution. Specifically, Plaintiff alleges Hood River’s inadequate supervision of the area in which minority students were allowed to congregate before class was based “partially on the minority status of the students ... [and] posed a risk of deprivation of ALDO FUNEZ’s due process rights as provided for under Amendment 14 of the United States Constitution.... [Hood River] exacerbated such risks through its action and/or inaction.” Compl. ¶ 38(a) and (c).

A. The Law

State officials or municipalities are hable for deprivations of life, liberty, or property that rise to the level of a “constitutional tort” under the Due Process Clause of the Fourteenth Amendment. Johnson v. City of Seattle, 474 F.3d 634, 638 (9th Cir.2007). Generally “a state is not liable for failing to protect individuals from harm by third parties” under the Fourteenth Amendment. DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). See also Johnson, 474 F.3d at 639 (same). Thus, individuals generally do not have a constitutional right to bring an action against school districts for injuries caused by third parties. See Harry A., 234 Fed.Appx. at 464 (A school district’s “failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”). See also DeShaney, 489 U.S. at 195-97, 109 S.Ct. 998. This general rule “is modified by two exceptions: (1) the special relationship exception; and (2) the danger creation exception.” Johnson, 474 F.3d at 639 (citing Grubbs I, 974 F.2d at 121). Accordingly, Plaintiff may not bring a claim against Hood River for the actions of the Student Defendants unless it can establish the facts fall under one of these exceptions.

Although it is unclear from the allegations in the Complaint under which exception this claim falls, Plaintiff contends in his Response to Hood River’s Motion to Dismiss that he intends to assert both exceptions.

B. Analysis

1. Danger-creation exception

“To prevail under the danger creation exception, a plaintiff must first show that [a defendant’s action under color of state law] affirmatively places the plaintiff in a position of danger, that is, where [the] action creates or exposes an individual to a danger which he or she would not have otherwise faced.” Johnson, 474 F.3d at 639 (internal quotations and citations omitted). As the Ninth Circuit held in Huffman v. County of Los Angeles,

[t]he danger-creation exception to De-Shaney does not create a broad rule that makes state officials liable under the Fourteenth Amendment whenever they increase the risk of some harm to members of the public. Rather, the danger-creation plaintiff must demonstrate, at the very least, that the state acted affirmatively, and with deliberate indifference, in creating a foreseeable danger to the plaintiff leading to the deprivation of the plaintiffs constitutional rights.

147 F.3d 1054, 1061 (9th Cir.1998) (internal citation omitted).

To establish school district officials acted with deliberate indifference to a danger they allegedly created, a plaintiff must show “(1) an unusually serious risk of harm ..., (2) defendant’s actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) defendant’s failure to take obvious steps to address that known, serious risk.” L.W. v. Grubbs (Grubbs II), 92 F.3d 894, 900 (9th Cir.1996). In other words, the plaintiff must show the defendant knows “something is going to happen but ignores the risk and exposes someone to it.” Id. (emphasis in original). Negligence on the part of state officials, whether simple or gross, is not sufficient to establish liability for a due-process violation. Id. at 898-900. See also Daniels v. Williams, 474 U.S. 327, 331-35, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).

Plaintiff contends “violence between and among children at school is a known danger. Deliberate failure to take responsible measures to supervise children within school affirmatively places a child in a position of danger. By virtue of minority and also due to disability ALDO FUNEZ was not in a position to defend himself.” According to Plaintiff, therefore, he has sufficiently stated a claim for violation of his right to due process. Plaintiff relies on Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir.1994), to support his contention.

In Johnson, the plaintiffs estate brought an action under § 1983 for, among other things, violation of the deceased student’s due-process rights when the deceased was shot and killed by a third party on school grounds during school hours. Id. at 199. The Fifth Circuit held the plaintiff did not state a claim for violation of the deceased’s due-process rights under the danger-creation exception. Id. The Fifth Circuit examined Wood v. Ostrander, 879 F.2d 583 (9th Cir.1989), and Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir.1989). In those cases, the courts found the danger-creation exception applied. The Fifth Circuit found “a school cannot be as dangerous as the nocturnal condition of the high-crime neighborhood described in Wood or the prisoner release program gone awry in Cornelius.” Id. at 201. The court also noted

[t]here is no pleading that school officials placed [the deceased] in a dangerous environment stripped of means to defend himself and cut off from sources of aid. There is no sufficiently culpable affirmative conduct. [The deceased] went to school. No state actor placed [the deceased] in a ‘unique, confrontational encounter’ with a violent criminal. Cornelius, 880 F.2d at 359. No official in the performance of her duties abandoned him in a crack house or released a known criminal in front of his locker.

Id. at 202. The Fifth Circuit concluded

[e]ven if the deployment of ... security measures was haphazard or negligent, it may not be inferred that the conduct of the defendants rose to the level of deliberate indifference.... [T]he most that may be said of defendants’ ultimately ineffective attempts to secure the environment is that they were negligent, but not that they were deliberately indifferent.

Id.

Here the Complaint alleges only that the assault occurred in an area where minority students were allowed to congregate. There is not any allegation that Plaintiff was required to be in that area or that he was prohibited from waiting in some other area of the school for class to begin. As the Supreme Court noted, the Due Process Clause is not “a guarantee of certain minimal levels of safety and security.” DeShaney, 489 U.S. at 189, 109 S.Ct. 998. In addition, in ¶ 39 of his Complaint, Plaintiff asserts he was damaged “[a]s a direct and foreseeable result of [Hood River’s] negligence.” As noted, negligence is not a sufficiently culpable state of mind for the danger-creation exception to apply. The Court, therefore, finds Plaintiff has not sufficiently pled the danger-creation exception.

2. Special relationship

“The ‘special relationship’ exception applies where a state actor abuses a special state-created relationship with an individual, such as in the case of custody or involuntary hospitalization.” Morgan v. Bend-La Pine Sch. Dist., No. CV-07-173-ST, 2009 WL 312423, at *10 (D. Or. Feb 6, 2009) (citing Morgan v. Gonzales, 495 F.3d 1084, 1093-94 (9th Cir.2007)).

Plaintiff does not cite any case in any circuit in which a court held the “special-relationship” exception applied to students injured by other students in school. Plaintiff relies on the fact that he is required to attend school and on the reasoning of Fazzolari v. Portland School District No. 1J, 303 Or. 1, 734 P.2d 1326 (1987), to support his assertion that the special-relationship exception applies here. Fazzolari, however, was a negligence action analyzed under Oregon law and the Fazzolari court did not address due process under the United States Constitution or the special-relationship exception.

In addition, the federal circuit courts that have addressed the argument made by Plaintiff have concluded a student is not “in custody” at school within the meaning of the special-relationship exception. As the Seventh Circuit explained:

Only where the state has exercised its power so as to render an individual unable to care for himself or herself may an affirmative duty to protect that individual arise. DeShaney, 109 S.Ct. at 1005-06. But beyond the case of incarcerated prisoners and involuntarily committed mental patients, the Supreme Court has never recognized such a duty. See Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982) (mental patients); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (prisoners).
We do not suggest that prisoners and mental patients are an exhaustive list of all persons to whom the state owes some affirmative duties, but the government, acting through local school administrations, has not rendered its schoolchildren so helpless that an affirmative constitutional duty to protect arises. Whatever duty of protection does arise is best left to laws outside the Constitution.
The state’s custody over their person is the most distinguishing characteristic in the cases of the mental patient and the prisoner; these people are unable to provide for basic human needs like food, clothing, shelter, medical care, and reasonable safety. See DeShaney, 109 S.Ct. at 1005. At most, the state might require a child to attend school ... but it cannot be suggested that compulsory school attendance makes a child unable to care for basic human needs. The parents still retain primary responsibility for feeding, clothing, sheltering, and caring for the child. By mandating school attendance for children under the age of sixteen, the state of Illinois has not assumed responsibility for their entire personal lives; these children and their parents retain substantial freedom to act. The analogy of a school yard to a prison may be a popular one for school-age children, but we cannot recognize constitutional duties on a child’s lament. Schoolchildren are not like mental patients and prisoners such that the state has an affirmative duty to protect them.

J.O. v. Alton Comm. Unit Sch. Dist. 11, 909 F.2d 267, 272-73 (7th Cir.1990). In addition, the Eighth Circuit concluded in Dorothy J. v. Little Rock School District that

state-mandated school attendance does not entail so restrictive a custodial relationship as to impose upon the State the same duty to protect it owes to prison inmates ... or to the involuntarily institutionalized .... Public school attendance does not render a child’s guardians unable to care for the child’s basic needs. In this regard, public schools are simply not analogous to prisons and mental institutions.

7 F.3d 729, 732 (8th Cir.1993). The court further concluded the student’s

mental retardation [did not] alter the equation. There is no allegation that the State involuntarily placed [the student] in the CBI program. Under DeShaney, it is “the State’s affirmative act of restraining the individual’s freedom to act on his own behalf,” 489 U.S. at 200, 109 S.Ct. at 1006, not the individual’s own limitations, that gives rise to the constitutional duty to protect. See Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 992 (1st Cir.1992); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 465-66 (3d Cir.1990).

Id. at 732-33. See also D.R. v. Middle Bucks Area Voc. Tech. Sch., 972 F.2d 1364, 1373 (3d Cir.1992) (rejected the plaintiffs argument that Pennsylvania’s scheme of compulsory school attendance “so restrains school children’s liberty that plaintiffs can be considered to have been in state ‘custody’ during school hours for Fourteenth Amendment purposes.”); Maldonado v. Josey, 975 F.2d 727, 733 (10th Cir.1992) (rejected the plaintiffs assertion that New Mexico’s compulsory school-attendance laws “so restrainfed] a school child’s personal liberty that the Due Process Clause imposes upon the state an affirmative obligation to protect that child.”).

The Court adopts the reasoning of J.O., D.R., Maldonado, and Dorothy J. and concludes Oregon’s compulsory school-attendance requirements did not render Plaintiff “in custody” for purposes of the special-relationship exception. The Court, therefore, concludes Plaintiff cannot state a claim against Hood River for violation of Plaintiffs rights to due process under the special-relationship exception.

In summary, the Court grants Hood River’s Motion to Dismiss as to Plaintiffs claim against Hood River for violation of Plaintiffs due-process rights under the United States Constitution.

CONCLUSION

For these reasons, the Court GRANTS in part and DENIES in part Defendant Hood River County School District’s Motion to Dismiss (# 40) as follows:

1. The Court denies Hood River’s Motion as to Plaintiffs negligence claim against Hood River.
2. The Court grants Hood River’s Motion as to Plaintiffs § 1983 claim against Hood River for violation of his right to FAPE.
3. The Court grants Hood River’s Motion as to Plaintiffs § 1983 claims against Hood River for deprivation of his right to equal protection and due process under the United States Constitution.

The Court GRANTS Plaintiff leave to amend his Complaint no later than January 4, 2010, for the purpose of curing the deficiencies as set out in this Opinion and Order.

IT IS SO ORDERED. 
      
      . At the time of Cooksey and Lawson, the 2006 version of § 30.275(9) was numbered § 30.275(8).
     