PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

J.D., by and through his parent SHAWNA 

DICINTIO, an individual,

Plaintiff,

v.

HILLSBORO SCHOOL DISTRICT, an 

Oregon public school district; MIKE SCOTT,

an individual, TED ZEHR, an individual, 

BRAD GREENWOOD, an individual, 

BRETT TROSCLAIR, an individual, 

DEREK DUGGAN, an individual,

Defendants.

Case No. 3:15-cv-02328-SI

OPINION AND ORDER

Kevin C. Brague, KIVEL AND HOWARD, LLP, 111 S.W. Fifth Avenue, Suite 1775, Portland, OR 

97204. Of Attorneys for Plaintiff.

Karen M. Vickers, Blake H. Fry, and Beth F. Plass, MERSEREAU SHANNON LLP, One S.W. 

Columbia Street, Suite 1600, Portland, OR 97258. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiff J.D. (“Plaintiff”), a minor and former student of Century High School in 

Washington County, Oregon, brings this suit against the Hillsboro School District (“School 

District”) and several of the School District’s employees: Mike Scott (“Scott”), the School 

Case 3:15-cv-02328-SI Document 13 Filed 05/31/16 Page 1 of 7
PAGE 2 – OPINION AND ORDER

District Superintendent; Ted Zehr (“Zehr”), the principal of Century High School; Brad 

Greenwood (“Greenwood”), Dean of Students at Century High School; Brett Trosclair

(“Trosclair”), a teacher; and Derek Duggan (“Duggan”), a teacher (collectively, “individual 

Defendants”). Before the Court is the individual Defendants’ Motion to Dismiss Plaintiff’s 

claims under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the Motion is 

granted in part and denied in part.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no 

cognizable legal theory to support the claim or when the complaint lacks sufficient factual 

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., 

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual 

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint 

and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 

629 F.3d 992, 998 (9th Cir. 2010). 

To be entitled to a presumption of truth, allegations in a complaint “may not simply recite 

the elements of a cause of action, but must contain sufficient allegations of underlying facts to 

give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 

652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must 

be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 

(9th Cir. 2008). The court need not, however, credit the plaintiff’s legal conclusions that are 

couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an 

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 

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PAGE 3 – OPINION AND ORDER

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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 (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

“A complaint should not be dismissed unless it appears beyond doubt the plaintiff can 

prove no set of facts in support of his claim that would entitle him to relief.” Clegg v. Cult 

Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). Dismissal under Federal Rule of Civil 

Procedure 12(b)(6) is generally without prejudice, and dismissal without leave to amend is 

proper only in “extraordinary” cases. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). 

BACKGROUND

Plaintiff filed this suit on December 14, 2015 against the School District and the 

individual Defendants, alleging seven claims: (1) violations of Plaintiff’s First Amendment right 

to freedom of speech, brought under 42 U.S.C. § 1983 (“§ 1983”) (“First Claim”); (2) violations 

of Plaintiff’s Fourteenth Amendment right to equal protection, brought under § 1983 (“Second 

Claim”); (3) violations of Title IX (“Third Claim”); (4) violations of Section 504 of the 

Rehabilitation Act (“Fourth Claim”); (5) common law intentional infliction of emotional distress

(“Fifth Claim”); (6) common law negligence (“Sixth Claim”); and (7) declaratory relief

(“Seventh Claim”).

In his Complaint, Plaintiff alleges that he was speaking with another student at a Century 

High School assembly in March of 2015 when Trosclair “turned on the boys and told them to 

shut up, I’ll kill you, and that he was going to throw them down the stairs.”

1

Plaintiff is openly 

homosexual, and both Plaintiff and the student that he was speaking with were special education 

 

1 Dkt. 1 ¶ 13.

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PAGE 4 – OPINION AND ORDER

students receiving special education services. According to Plaintiff, Trosclair was placed on 

paid administrative leave as a result of the incident. Plaintiff asserts that during the week that 

Trosclair was on administrative leave, Trosclair and other unnamed teachers encouraged a large 

number of students to walk out of class to protest Trosclair’s discipline. Plaintiff alleges that 

Trosclair and the other teachers’ encouragement “condoned and supported a hostile education 

environment and led to threats of violence and death against Plaintiff and fear of imminent 

bodily harm.”2Plaintiff does not specify who threatened him with violence and death, other than 

Trosclair at the school assembly.

Plaintiff alleges that School District employees had previously subjected him to several 

instances of hostile and discriminatory conduct. Plaintiff describes several incidents, including 

the following: in May of 2014, Greenwood refused to assist Plaintiff while Plaintiff was being 

physically and verbally assaulted in the school lunchroom; in September of 2014, Greenwood 

called Plaintiff a “girl;” and also in September of 2014, Duggan told Plaintiff to stop being a 

“diva” and a “priss.”3 According to Plaintiff, Zehr refused to speak with him about the alleged 

hostile and discriminatory conduct and failed to enforce relevant School District policies. 

Plaintiff alleges that the School District removed him from school because of these incidents and 

denied him a public education.

DISCUSSION

The individual Defendants move to dismiss Plaintiff’s claims against them. Plaintiff 

agrees to dismiss the individual Defendants from his Third, Fourth, Fifth, Sixth, and Seventh 

 

2

Id. ¶ 15.

3

Id. ¶ 16.

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Claims for relief.4 Dkt. 9 at 3 (Plaintiff’s Response). Plaintiff, however, opposes the individual 

Defendants’ motion to dismiss his First and Second Claims.

Plaintiff brings his First and Second Claims under § 1983, which provides a cause of 

action for “the deprivation of any rights, privileges, or immunities secured by the Constitution 

and laws.” A plaintiff must allege two essential elements to state a claim under § 1983: “(1) that 

a right secured by the Constitution or laws of the United States was violated, and (2) that the 

alleged violation was committed by a person acting under the color of State law.” Long v. Cty. of 

L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). The 

individual Defendants move to dismiss Plaintiff’s First and Second Claims on the grounds that 

Plaintiff fails specifically to allege which individual Defendants deprived him of which 

constitutional rights. The individual Defendants do not make any other argument in support of 

their motion to dismiss Plaintiff’s First and Second Claims. 

Plaintiff labels his First Claim as a claim for violations of his First Amendment right to 

freedom of speech. In Plaintiff’s First Claim, he alleges, in part, that “Defendants violated 

Plaintiff’s constitutional right to freedom of speech by threatening to kill him,” referring to the 

incident with Trosclair at the school assembly. Dkt. 1 ¶ 19. Plaintiff’s First Claim also identifies

Scott and Zehr and alleges that they failed properly to train and supervise their employees. Id.

¶ 21. Thus, Plaintiff alleges that Trosclair, Scott, and Zehr deprived him of his First Amendment 

right to freedom of speech, and Trosclair, Scott, and Zehr’s motion to dismiss Plaintiff’s First 

Claim is denied.

 

4

The Court notes that although Plaintiff’s Third and Fourth Claims name only the School 

District as a defendant, Plaintiff agrees to dismiss the individual Defendants from these claims. 

Id. ¶¶ 31-36 (Third Claim); Id. ¶¶ 37-42 (Fourth Claim). 

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Plaintiff labels his Second Claim as a claim for violations of his Fourteenth Amendment 

right to equal protection. In Plaintiff’s Second Claim, he alleges, in part, as follows:

The [School] District violated Plaintiff’s constitutional right to 

equal protection under the laws of [the] nation and the state of 

Oregon when Defendant threatened to kill Plaintiff—a homosexual 

special education student—and then removed Plaintiff from a 

public school based on his homosexuality.

Id. ¶ 25. Here, Plaintiff appears again to refer to the incident with Trosclair at the school 

assembly. Plaintiff, however, alleges that the School District violated his Fourteenth Amendment 

right to equal protection because of the incident. Plaintiff does not state that Trosclair violated 

his Fourteenth Amendment right to equal protection. Thus, Trosclair’s motion to dismiss 

Plaintiff’s Second Claim is granted. Plaintiff’s Second Claim, however, identifies Scott and Zehr 

and alleges that they failed properly to train and supervise their employees. Id. ¶ 28. Thus, 

Plaintiff alleges that Scott and Zehr deprived him of his Fourteenth Amendment right to equal 

protection, and Scott and Zehr’s motion to dismiss Plaintiff’s Second Claim is denied.

Although Plaintiff describes allegedly inappropriate acts performed by Greenwood and 

Duggan in May and September of 2014, Plaintiff does not state if these acts constituted 

deprivations of his First or Fourteenth Amendment rights. Plaintiff does not identify Greenwood 

or Duggan in his discussion of his First or Second Claims. Thus, Plaintiff fails to allege that 

Greenwood or Duggan deprived him of specific constitutional rights. Accordingly, Greenwood 

and Duggan’s motion to dismiss Plaintiff’s First and Second Claims is granted.

CONCLUSION

The individual Defendants’ motion to dismiss (Dkt. 8) is GRANTED in part and 

DENIED in part as described in this Opinion and Order. The Court DISMISSES without 

prejudice Plaintiff’s First and Second Claims against Greenwood and Duggan; Plaintiff’s Second

Claim against Trosclair; and Plaintiff’s Third, Fourth, Fifth, Sixth, and Seventh Claims against 

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the individual Defendants. Plaintiff has leave file an amended complaint within 30 days of the 

date of this Opinion and Order.

IT IS SO ORDERED.

DATED this 31st day of May, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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