IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

COLTON PEARSON, SCOTT PEARSON, 

and MANDY PEARSON, 

Plaintiffs, 

vs. 

CENTRAL CURRY SCHOOL DISTRICT 

#1, DENNIS JOHNSON, in his 

individual and official 

capacity, and GREG BROWN, in 

his individual and official 

capacity, 

Defendants. 

Justin Steffen 

Steffen Legal Services, LLC 

2027 SE Jefferson St, Ste 205 

Milwaukie, OR 97222 

Attorney for plaintiffs 

Page 1 - OPINION AND ORDER 

Case No. 6:15-cv-1353-AA 

OPINION AND ORDER 
Kate Wilkinson 

Oregon School Boards Association 

PO Box 1068 

Salem, Oregon 97308 

Attorney for defendants 

AIKEN, Chief Judge: 

Plaintiffs Colton ("Colton"), Scott ("Scott"), and Mandy 

("Mandy") Pearson filed this 42 U.S.C. § 1983 action against 

Defendants Central Curry School District ("CCSD"), Dennis Johnson 

("Johnson"), and Greg Brown ("Brown"), alleging violations of the 

First and Fourth Amendments of the United States Constitution, 

and related violations of state law. The allegations in the 

complaint stem from a confrontation between Colton and Brown 

during a high school football game in Reedsport, Oregon. 

Defendants move to dismiss all claims pursuant to Fed. R. Civ. P. 

12(b) (6). For the reasons below, defendant's motion is granted 

in part and denied in part. 

BACKGROUND 

Colton played football for Gold Beach High School, which is 

operated by the District. Pl's Compl., ~ 2. At the time of the 

incidents at issue, Johnson was the superintendent of CCSD. Pl's 

Compl., ~ 4. Scott and Mandy are Colton's parents. Pl's Compl., 

~ 2. On October 10, 2014, Gold Beach played a football game 

against Reedsport High School, in Reedsport, Oregon. Pl's 

Compl., ~ 2. Brown was acting as an assistant coach. 

Page 2 - OPINION AND ORDER 
During the game, Colton went to the sidelines to take some 

ibuprofen. Pl's Compl., ~ 3. Brown was angry that Colton had 

left the game. Brown followed Colton to the sidelines, yelling 

at him. As Scott and Mandy watched, Brown punched Colton in the 

side of the head with a closed fist. Colton was wearing his 

helmet and did not sustain serious physical injury. Brown 

pleaded no contest to harassment and disorderly conduct for his 

assault of Colton. Pl's Compl., ~ 5. He is currently in a 

diversion program related to those charges. 

In the spring of 2015, plaintiffs sent Johnson a tort claim 

notice as required by Or. Rev. Stat. § 30.275. Pl's Compl., ~ 6. 

Shortly after Johnson and CCSD received the notice, Colton was 

suspended from school for allegedly using his cellular phone in 

class. The suspension was rescinded a few days later. 

Johnson described Brown as only slapping Colton. Pl's 

Compl., ~ 4. Plaintiffs assert that Johnson downplayed the 

assault and was hesitant to punish Brown because Brown and 

Johnson are close personal friends. Plaintiffs further allege 

that CCSD has taken no action to address the assault or to ensure 

that it does not happen again. Pl's Compl., ~ 7. 

Plaintiffs allege that when Brown attacked Colton, Brown (1) 

subjected Colton to an unreasonable seizure, in violation of the 

Fourth Amendment, and (2) committed a battery, in violation of 

state law. Pl's Compl., ~ 9, 12. Plaintiffs also bring a statePage 3 - OPINION AND ORDER 
law claim of intentional infliction of emotional distress against 

Brown and Johnson. Pl's Compl., ~~ 15-16. Finally, plaintiffs 

assert that in attempting to suspend Colton, Johnson was 

retaliating against them for filing this lawsuit, in violation of 

their First Amendment rights. Pl.'s Compl. ~ 19. 

Plaintiffs allege that CCSD is liable on the Fourth 

Amendment claim because it has a pattern, practice or custom of 

failing to properly screen and train coaches. Pl.'s Compl. ~ 9. 

They further contend that CCSD is liable on the First Amendment 

claim because it either has a pattern, practice, or custom of 

retaliating against students who exercise their civil rights or 

failed to properly train its administrators. Pl.'s Compl. ~ 19. 

Plaintiffs seek non-economic damages, punitive damages, 

reasonable costs and attorneys' fees, and injunctive relief. 

Pl.'s Comp. ~ 21. 

STANDARD 

Under Fed. R. Civ. P. 12(b) (6), a complaint is construed in 

favor of the plaintiff, and its factual allegations are taken as 

true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th 

Cir. 2010). "[F]or a complaint to survive a motion to dismiss, 

the non-conclusory 'factual content,' and reasonable inferences 

from that content, must be plausibly suggestive of a claim 

entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 

572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 

Page 4 - OPINION AND ORDER 
U.S. 662, 678 (2007)). "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." Iqbal, 556 U.S. at 678. "[O]nce a claim 

has been stated adequately, it may be supported by showing any 

set of facts consistent with the allegations in the complaint." 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007). 

"[G]enerally the scope of review on a motion to dismiss for 

failure to state a claim is limited to the complaint[.]" 

Daniels-Hall, 629 F.3d at 998. 

DISCUSSION 

I. Venue 

Defendants initially argue that because all defendants are 

located in Curry County and "almost all the alleged events" took 

place in Curry County, this case should be dismissed or, at a 

minimum, transferred to the Medford Division of the District of 

Oregon. But the altercation at the heart of the complaint took 

place in Reedsport, which is in the Eugene Division. LR 3(a) (3). 

Venue is therefore proper because this action was filed in "a 

judicial district in which a substantial part of the events or 

omissions giving rise to the claim occurred." 28 U.S.C. § 

1391(b) (2); Atl. Marine Canst. Co., Inc. v. U.S. Dist. Court for 

W. Dist. of Tex., 134 S. Ct. 568, 577 (2013). 

II. Fourth Amendment Claim 

Page 5 - OPINION AND ORDER 
Defendants contend that plaintiffs failed to state a Fourth 

Amendment claim because they have not alleged facts supporting 

the conclusion that Brown's actions amounted to a "seizure" 

within the meaning of the Fourth Amendment. I agree. 

The Fourth Amendment protects against "unreasonable searches 

and seizures." U.S. Canst. amend. IV. In the ordinary lawenforcement setting, a plaintiff alleging an unreasonable seizure 

must show that, due to the defendant's use of "some form of 

physical force or show of authority," a reasonable person in the 

plaintiff's shoes "would have believed that he was not free to 

leave." United States v. Summers, 268 F.3d 683, 686 (9th Cir. 

2001). This test may apply differently in the school setting, 

because "children sent to public school are lawfully confined to 

the classroom." Sandin v. Conner, 515 U.S. 472, 485 (1995). But 

the differences between the school and law-enforcement settings 

do not relieve plaintiffs of the requirement to allege that 

Brown's restraint on Colton's liberty rose to the level of a 

"seizure" under the Fourth Amendment. Because the complaint 

contains no facts to support such an allegation, 1 plaintiffs have 

failed to state a claim for relief under section 1983 and the 

1 In their brief, plaintiffs do allege that a reasonable 

football player would not feel free to leave while he was being 

"berate[d]" by a coach. Pl.'s Resp. Mot. Dismiss 3. But because 

a motion to dismiss under Fed. R. Civ. P. 12(b) (6) tests the 

sufficiency of the complaint, I am unable to consider those 

allegations here. Daniels-Hall, 629 F.3d at 998. 

Page 6 - OPINION AND ORDER 
Fourth Amendment. 2 Defendants' motion to dismiss the first claim 

for relief is granted. 3 

III. First Amendment Claim 

To establish a First Amendment retaliation claim, a 

plaintiff must show that (1) he or she engaged in 

constitutionally protected activity, (2) the defendant's actions 

would chill a person of ordinary firmness from continuing to 

engage in the protected activity, and (3) the protected activity 

was a substantial or motivating factor in the defendant's 

2 It is unclear whether all claims of excessive force in the 

school setting are properly brought under the Fourth Amendment, 

or whether some such claims should be maintained under the Due 

Process Clause of the Fourteenth Amendment. See Preschooler II 

v. Clark Cnty. Sch. Bd. of Trustees, 479 F.3d 1175, 1181 n.5 (9th 

Cir. 2007) (analyzing claims that a teacher hit, slapped, and 

body-slammed a student under the Fourth Amendment, but noting 

that "'it may be possible for a school official to use excessive 

force without seizing or searching the student, and that the 

Fourth Amendment would not apply to such conduct'" (quoting Doe 

ex rel. Doe v. Hawaii Dep't of Educ., 334 F.3d 906, 909 (9th Cir. 

2003)) ); see generally Lewis M. Wasserman, Students' Freedom from 

Excessive Force by Public School Officials: A Fourth or 

Fourteenth Amendment Right?, 21-FALL Kan. J.L. & Pub. Pol'y 35, 

54 (Fall 2011) (explaining that "the majority of circuit courts 

have held that claims of . . wholly arbitrary applications of 

force upon public school students[] must be analyzed as 

Fourteenth Amendment substantive due process claims"); id. at 82 

(summarizing the arguments for analyzing such claims instead 

under the Fourth Amendment). I express no opinion on this legal 

question, and hold only that plaintiffs have failed to plead a 

Fourth Amendment violation because the complaint does not allege 

that Colton's liberty was restrained or that a reasonable person 

in Colton's position would not have felt free to leave. 

3 In their response to the motion to dismiss, plaintiffs 

indicate a willingness to amend their complaint, but they have 

not moved for leave to amend. 

Page 7 - OPINION AND ORDER 
conduct. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 

(9th Cir. 2006). Defendants contend plaintiffs have failed to 

(1) plead facts alleging constitutionally protected speech, and 

(2) allege a causal connection between constitutionally protected 

speech and impermissible adverse action. I disagree. 

Plaintiffs have adequately pleaded all three elements of a 

First Amendment retaliation claim. The complaint alleges that 

"[s]hortly after receiving the tort claim notice [in this 

action], Defendant Johnson attempted to suspend Colton Pearson. 

This suspension was motivated in whole or in part by Plaintiffs 

voicing their opposition to how the events described above were 

handled by Defendants." Pl.'s Compl. ! 19. First, filing a 

lawsuit is a "mode[] of expression and association protected by 

the First . . Amendment." Nat'l Ass'n for Advancement of 

Colored People v. Button, 371 U.S. 415, 431 (1963); see also 

Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006) 

(plaintiff stated a claim for First Amendment retaliation by 

asserting that a police officer had obtained and executed a 

search warrant against him to punish him for filing a lawsuit 

against another police officer) . Second, a jury could find that 

the threat of suspension from school would chill a person from 

ordinary firmness-whether that person is the suspended student or 

the suspended student's parent-from continuing to pursue legal 

claims against the school. See Goss v. Lopez, 419 U.S. 565, 576 

Page 8 - OPINION AND ORDER 
(1975) ("[T]otal exclusion from the educational process for more 

than a trivial period . is a serious event in the life of the 

suspended child."); Seamons v. Snow, 84 F.3d 1226, 1237 (lOth 

Cir. 1996) (suspending a student from the football team could 

constitute an "adverse action" for First Amendment purposes) 

Finally, where the temporal proximity between the protected 

activity and the adverse action is "very close," as alleged here, 

that proximity alone is sufficient evidence of causation to 

survive a motion to dismiss. Clark Cnty. Sch. Dist. v. Breeden, 

532 U.S. 268, 273 (2001). Defendants' motion to dismiss 

plaintiffs' First Amendment claim is denied. 

IV. Claims Against CCSD 

With respect to the Fourth and First Amendment claims 

against CCSD, the complaint alleges the following: 

Defendant CCSD has a policy, practice, or custom of 

failing to properly screen coaches and/or properly 

train them to ensure they will not assault students. 

Defendant CCSD has a policy, practice, or custom of 

retaliating against students who exercise their civil 

rights, as evidenced by the fact that Defendant Johnson 

is an administrator with final decision making 

authority. In the alternative, CCSD has failed to 

train its administrators properly. 

Pl.'s Compl. c:!Ic:IT 9, 19. The "policy, practice, or custom" and 

"failure to train" statements merely recite the legal standards 

for municipal liability under 42 U.S.C. § 1983, as articulated in 

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978) and City 

Page 9 - OPINION AND ORDER 
of Canton v. Harris, 489 U.S. 378, 388 (1989). As such, they are 

"'a formulaic recitation of the elements of a cause of action'" 

that fall short of stating "'a claim to relief that is plausible 

on its face.'" Ashcroft, 556 U.S. at 678 (quoting Twombly, 550 

U.S. at 555, 570). The complaint alleges one fact in support of 

the allegations of municipal liability-that Johnson is an 

administrator with final decisionmaking authority. But that fact 

alone is insufficient to support plaintiffs' claim against CCSD, 

or every successful section 1983 claim would give rise to 

municipal liability. See Bd. Of Cnty. Comm'rs of Bryan Cnty., 

Okla. v. Brown, 520 U.S. 397, 415 (1997) ("In the broadest sense, 

every injury is traceable to a hiring decision. Where a court 

fails to adhere to rigorous requirements of culpability and 

causation, municipal liability collapses into respondeat superior 

liability.") 

Because plaintiffs have failed to state a claim for 

municipal liability, defendants' motion to dismiss the first and 

fourth claims for relief as to CCSD is granted. 4 In addition, 

because plaintiffs do not object to the second and third claims 

4 Plaintiffs indicated a willingness to amend their 

complaint. Accordingly, dismissal of the first and fourth claims 

against CCSD is without prejudice. 

Page 10 - OPINION AND ORDER 
for relief being dismissed as to CCSD, the motion to dismiss 

those claims as to CCSD is granted. 5 

V. Claims Against Johnson 

Defendants next move to dismiss all claims against Johnson, 

asserting that plaintiffs have failed to allege facts sufficient 

to state any claim against him. Based on plaintiffs' 

clarification in their response regarding which claims are being 

asserted against which defendants, defendants' motion to dismiss 

plaintiffs' first and second claims as to Johnson is granted. In 

all other respects, this motion is denied. 

Plaintiffs are not relying on respondeat superior liability; 

they allege Johnson is directly liable for intentional infliction 

of emotional distress and First Amendment retaliation. Those 

claims are adequately pleaded. The complaint alleges that 

Johnson and Brown are close personal friends, that the friendship 

drove Johnson to intentionally downplay the assault and fail to 

punish Brown appropriately despite substantial certainty that 

those actions would cause the Pearsons emotional distress, and 

that Johnson attempted to suspend Colton to retaliate against the 

Pearsons for filing this lawsuit. Those factual allegations are 

5 Plaintiffs stipulate to the dismissal of the intentional 

inflection of emotional distress claim against CCSD. I do not 

read the complaint to make a battery claim against CCSD, and 

plaintiffs state that making such a claim was not their intent. 

Nonetheless, for clarity, I grant the motion to dismiss both 

state law claims against CCSD. 

Page 11 - OPINION AND ORDER 
sufficient to withstand a motion to dismiss for failure to state 

a claim. 

VI. Mandy and Scott's Claims 

Finally, defendants challenge Mandy and Scott's 

participation in this lawsuit as plaintiffs, asserting they lack 

standing to sue. To demonstrate standing under Article III of 

the United States Constitution, a plaintiff must show that he or 

she has suffered an injury that is fairly traceable to the 

challenged action of the defendant, and it is likely the injury 

will be redressed by a favorable decision. Krottner v. Starbucks 

Corp., 628 F.3d 1139, 1141 (9th Cir. 2010). Because defendants 

challenge Mandy and Scott's standing, but not Colton's, I 

interpret their challenge as an assertion that Mandy and Scott 

have not alleged a cognizable injury. 6 

The complaint adequately alleges that Mandy and Scott have 

suffered injuries that are distinct from Colton's purported 

injury with respect to the third and fourth claims for relief. 7 

With respect to the intentional infliction of emotional distress 

claim, the complaint specifically alleges that "[i]ntentionally 

6 This issue is not well-briefed. Nonetheless, federal 

courts have an independent duty to establish subject matter 

jurisdiction, regardless of whether the parties raise the issue. 

United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 

960, 967 (9th Cir. 2004). 

7 Mandy and Scott are not parties to the Fourth Amendment or 

battery claims. 

Page 12 - OPINION AND ORDER 
assaulting a person's son in front of his parents, downplaying 

such assault, and punishing their son for threatening legal 

action all constitute an extraordinary transgression of socially 

tolerable behavior." Pl.'s Compl. ~ 16. Those asserted injuries 

are personal to Mandy and Colton and are qualitatively different 

from Colton's purported injuries. The First Amendment 

retaliation claim alleges that Colton's suspension was intended 

to prevent all plaintiffs, not just Colton, from proceeding with 

this lawsuit. Pl.'s Compl. ~ 19. Again, this allegation 

adequately alleges injuries specific to Mandy and Scott. 

Defendants' motion to dismiss Mandy and Scott's claims is denied. 

CONCLUSION 

Defendants' motion to dismiss (doc. 12) is GRANTED in part 

and DENIED in part. Plaintiffs' first claim for violation of the 

Fourth Amendment is dismissed. Plaintiffs' second claim for 

battery is dismissed with respect to Johnson and CCSD. 

Plaintiffs' third claim for intentional infliction of emotional 

distress is dismissed with respect to CCSD. Because plaintiffs' 

fourth claim for violations of the First Amendment provides a 

continuing basis for federal jurisdiction, defendants' request 

for remand to Curry County Circuit Court is denied. 

Page 13 - OPINION AND ORDER 
IT IS SO ORDERED. ,,,_,o 

Dated this ~of September 2015. 

Ann Aiken 

United States District Judge 

Page 14 - OPINION AND ORDER