United States District Court, D. New Mexico
RACHEL HIGGINS, as Guardian ad Litem for B.P., a minor child, Plaintiff,
BRITTNY SAAVEDRA, in her personal capacity acting under color of state law; DEBORAH GARTMAN, in her personal capacity acting under color of state law; MARK A. GARCIA, in his personal capacity acting under color of state law; SHONN SCHROER, in his personal capacity acting under color of state law; CYNTHIA SOO HOO, in her personal capacity acting under color of state law; and ALBUQUERQUE PUBLIC SCHOOLS DISTRICT, Defendants.
MEMORANDUM OPINION AND ORDER
William P. Lynch United States Magistrate Judge.
First Amended Complaint for Civil Rights Violations (Doc. 40)
(Complaint), Plaintiff Rachel Higgins (Plaintiff) asserts
claims as Guardian ad Litem on behalf of B.P., a minor child
who was a student at West Mesa High School (WMHS) in the
Albuquerque Public Schools District (APS). Compl.
¶¶ 1, 4, 13. Defendants are APS, Cynthia Soo Hoo,
the Executive Director of Compliance for the Special
Education Department at APS (ED Soo Hoo), Brittny Saavedra,
the Head Varsity Cheerleading Coach at WMHS (Coach Saavedra),
Deborah Gartman, the Assistant Principal at WMHS (Asst.
Principal Gartman), Mark A. Garcia, the Principal at WMHS
(Principal Garcia), and Shonn Schroer, the Athletic Director
at WMHS (Athletic Director Schroer) (together, Defendants).
Compl. ¶¶ 3-9.
alleges that B.P., who was a member of the WMHS varsity
cheerleading squad, was sexually harassed and intimidated by
other members of the team while on a school-sponsored trip
and at WMHS. Compl. ¶¶ 14, 43, 126. Plaintiff
asserts that Defendants violated B.P.'s rights under the
Equal Protection Clause when they attempted to extort a
release from liability for the harassment by withholding
B.P.'s transfer to another school. Compl. ¶¶
128-131, 146-147, 152. Defendants have moved for summary
judgment on Plaintiff's equal protection claim. (Doc.
41.) Plaintiff has responded in opposition, and has also
moved for denial or deferral of the summary judgment motion
in order to permit discovery. (Docs. 49 and 50.) Because
there are material facts in dispute and Plaintiff has not yet
had the opportunity to conduct discovery, I will grant
Plaintiff's Rule 56(d) Motion and will defer ruling on
the summary judgment motion.
following facts are undisputed unless otherwise noted. B.P.,
B.P.'s younger brother, and B.P.'s friend were all
students at WMHS. Summary Judgment Mot., Undisputed Material
Facts (UMF) ¶¶ 1-2, 4. At WMHS, B.P. received
accommodations for special education needs related to
dyslexia, including extra time during testing and not being
penalized for spelling errors, according to an Individualized
Education Plan (IEP). UMF ¶ 5; Summary Judgment Resp.,
Plaintiff's Counterstatement of Undisputed Material Facts
(PCUMF) ¶ I; Ex. 1, Affidavit of Myra Pizarro, ¶
12. B.P.'s brother and friend did not receive special
education services. Summary Judgment Mot. at 17.
25, 2015, members of the WMHS cheerleading squad took nude
photographs and video of B.P. without her permission. PCUMF
¶ A. Following this incident, B.P., B.P.'s younger
brother, and B.P.'s friend were all bullied and sexually
harassed at WMHS. PCUMF ¶¶ B-C. As a result they
each requested to transfer to another school. PCUMF ¶ C;
UMF ¶ 1. On October 7, 2015, B.P.'s mother submitted
transfer requests for B.P. and for B.P.'s brother, both
listing student safety concerns as the reason and requesting
to transfer from WMHS to Albuquerque High School (AHS). UMF
¶ 1. The transfer for B.P.'s friend was approved and
she transferred out of WMHS without incident. UMF ¶ 4;
PCUMF ¶ R. Early in January 2016, B.P.'s mother
learned that the transfer to AHS had been approved for
B.P.'s brother but not for B.P. PCUMF ¶ H.
mother went to AHS to speak to the principal about the
transfers, and he agreed to accept B.P. as a transfer
student. UMF ¶ 9. But the parties dispute whether this
agreement constituted approval of the transfer and whether
AHS had the capacity at that time to accept a student with
B.P.'s special education needs. UMF ¶¶ 6, 10;
PCUMF ¶¶ I, K, L, M, P. Defendants assert that the
special education program at AHS was over capacity, other
special education students were on a waiting list ahead of
B.P. to transfer into AHS if space became available, and
neither the APS Transfer Office nor the AHS principal had the
authority to approve a transfer into an already full program
or to ignore an IEP by disregarding B.P.'s special
education status and enrolling her as a regular education
student. UMF ¶¶ 6-8, 10; Summary Judgment Reply
¶ I. Plaintiff contends that AHS had the capacity to
meet B.P.'s educational needs, which required minimal
accommodation, and that B.P.'s transfer was approved by
the AHS principal. PCUMF ¶¶ I, K.
parents withdrew B.P. from WMHS, but then received voicemail
and email messages from ED Soo Hoo indicating that B.P. would
not be allowed to transfer to AHS unless her parents signed a
settlement agreement releasing Defendants from liability in
relation to the harassment B.P. had suffered at WMHS. PCUMF
¶¶ L-P. Plaintiff asserts that Defendants reversed
B.P.'s previously approved transfer to AHS in order to
obtain a release of B.P.'s legal claims. PCUMF
¶¶ M-P. Plaintiff argues that in doing so,
Defendants violated B.P.'s equal protection rights by
“inflict[ing] a cost or burden on [her] without
imposing it on those who are similarly situated in material
respects, and . . . without any conceivable basis other than
a wholly illegitimate motive.” Summary Judgment Resp.
at 15 (quoting Jicarilla Apache Nation v. Rio Arriba
Cty., 440 F.3d 1202, 1209 (10th Cir. 2006)). But
Defendants maintain that B.P.'s transfer had not been
approved, and could not be approved through the normal APS
transfer process because AHS did not have room in its special
education program to admit B.P. UMF ¶¶ 8, 10- 11;
Summary Judgment Reply ¶¶ H-I, L-M, P, S. They
contend that B.P. could have transferred without delay to any
other high school that did have space in its special
education program, and that ED Soo Hoo offered to force
B.P.'s transfer to AHS despite the lack of space as a
permissible means of negotiating the settlement of B.P.'s
claims. UMF ¶¶ 11-12. Defendants argue that they
are entitled to summary judgment because Plaintiff has failed
to state a claim for a violation of equal protection and
because they are entitled to qualified immunity. Plaintiff
asks the Court to defer or deny the summary judgment motion
because Plaintiff has not had the opportunity to discover
facts essential to the claim.
judgment may be granted if the moving party shows
“there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.” Fed.R.Civ.P. 56(c). “When applying this
standard, [the Court] view[s] the evidence and draw[s]
reasonable inferences therefrom in the light most favorable
to the nonmoving party.” Scull v. New Mexico,
236 F.3d 588, 595 (10th Cir. 2000) (internal quotation marks
omitted). However, when a defendant raises qualified immunity
as a defense, the plaintiff must demonstrate that the
defendant's actions violated a clearly-established
constitutional or statutory right before the defendant will
bear the traditional burden. See Scull, 236 F.3d at
judgment should not be granted “where the nonmoving
party has not had the opportunity to discover information
that is essential to [her] opposition.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986). Rule
56(d) allows a nonmovant to seek deferral or denial of a
summary judgment ruling pending discovery. Fed.R.Civ.P.
56(d). Under Rule 56(d), nonmoving parties who need
additional discovery to respond to a motion for summary
judgment must present an affidavit “identifying (1) the
probable facts not available, (2) why those facts cannot be
presented currently, (3) what steps have been taken to obtain
these facts, and (4) how additional time will enable the
party to obtain those facts and rebut the motion for summary
judgment.” Valley Forge Ins. Co. v. Health Care
Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir.
2010) (internal brackets and quotation marks omitted).
for further discovery should ordinarily be treated
liberally.” Cerveny v. Aventis, Inc., 855 F.3d
1091, 1110 (10th Cir. 2017). When the information sought is
within the exclusive control of the movant, that factor
weighs heavily in favor of relief. See Price ex rel.
Price v. Western Res., Inc., 232 F.3d 779, 783 (10th
Cir. 2000). An assertion of qualified immunity will heighten
the Rule 56(d) burden because officials have “a right,
not merely to avoid standing trial, but also to avoid the
burdens of such pretrial matters as discovery.”
Medina v. Cram, 252 F.3d 1124, 1127 (10th Cir. 2001)
(quotations omitted). But “limited discovery may
sometimes be necessary before the district court can resolve
a motion for summary judgment based on qualified
immunity.” Crawford-El v. Britton, 523 U.S.
574, 593 n.14 (1998).
Court stayed discovery in this case pending the disposition
of Defendants' dispositive motions asserting qualified
immunity. (Doc. 45.) Consequently, Plaintiff has not had any
opportunity to obtain discovery from Defendants. Plaintiff
asserts that discovery is necessary to test the veracity of
statements relied on by Defendants to argue that the refusal
of B.P.'s transfer was not a violation of equal
Equal Protection Clause of the Fourteenth Amendment prohibits
any state from “deny[ing] to any person within its
jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. “[I]t embodies a general
rule that States must treat like cases alike but may treat
unlike cases accordingly.” Teigen v. Renfrow,
511 F.3d 1072, 1083 (10th Cir. 2007) (quoting Vacco v.
Quill, 521 U.S. 793, 799 (1997)). Plaintiff brings her
claim under a class-of-one theory, alleging that by denying
B.P. the ability to transfer to AHS without first waiving her
legal claims, while allowing B.P.'s ...