1 2 3 PETER W. ALFERT, SBN 83139 HINTON ALFERT & KAHN LLP 200 Pringle Ave., Suite 450 Walnut Creek, California 94596 Telephone: (925) 279-3009 Facsimile: (925) 279-3342 4 5 6 TODD BOLEY, SBN 64119 1212 Broadway, 16th Floor Oakland, CA 94612 Telephone: (510) 836-4500 Facsimile: (510) 649-5170 7 Attorneys for Plaintiffs 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 LARRY EVANS, MEGAN EVANS, M.E., a minor by and through his guardian ad litem LARRY EVANS, TERESA GREEN, A.S., a minor by and through his guardian ad litem TERESA GREEN, HEATHER CARRANZA, L.C., a minor by and through her guardian ad litem HEATHER CARRANZA, MICHELE SMITH, M.M., a minor by and through his guardian ad litem MICHELE SMITH, ARKEITHIA JOHNSON, J.L., a minor by and through his guardian ad litem ARKEITHIA JOHNSON, ROBERTO VIELMAS, MARIA BELTRAN, G.V-B. a minor by and through her guardian ad litem, ROBERTO VIELMAS, S.G., a minor by and through his guardian ad litem, RAJ DITTA, MARIO ROJAS, DIOCELINA OCHOA, M.R., a minor by and through his guardian ad litem, MARIO ROJAS, 20 No. C-13-1476-LB-ARB SECOND AMENDED COMPLAINT FOR DAMAGES [JURY DEMANDED] Plaintiffs, v. 21 22 23 ANTIOCH UNIFIED SCHOOL DISTRICT, THERESA ALLEN-CAULBOY, MICHAEL GREEN, DAVID WAX, KEITH ROGENSKI, KAI MONTGOMERY, and DOES 1-30, 24 25 Defendants. Plaintiffs LARRY EVANS, MEGAN EVANS and M.E., a minor by and through his 26 guardian ad litem LARRY EVANS (hereinafter “M.E.”), TERESA GREEN and A.S., a minor by 27 and through his guardian ad litem TERESA GREEN (hereinafter “A.S.”), HEATHER 28 CARRANZA and L.C., a minor by and through her guardian ad litem HEATHER CARRANZA SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -1- 1 (hereinafter “L.C.”), MICHELE SMITH and M.M., a minor by and through his guardian ad litem 2 MICHELE SMITH (hereinafter “M.M.”), ARKEITHIA JOHNSON and J.L., a minor through his 3 guardian ad litem ARKEITHIA JOHNSON (hereinafter “J.L.”), ROBERTO VIELMAS, MARIA 4 BELTRAN, G.V-B. a minor by and through her guardian ad litem, ROBERTO VIELMAS 5 (hereinafter “G. V-B.”), S.G., a minor by and through his guardian ad litem, RAJ DITTA 6 (hereinafter “S.G.”), MARIO ROJAS, DIOCELINA OCHOA, and M.R., a minor by and through 7 his guardian ad litem, MARIO ROJAS (hereinafter “M.R.”) allege as follows: JURISDICTION AND VENUE 8 9 1. Jurisdiction over Plaintiffs’federal law claims is founded upon 28 U.S.C. § 1331 10 [federal question jurisdiction] and 28 U.S.C. § 1343(a)(3) [federal civil rights jurisdiction]. All 11 claims for violation of Plaintiffs’rights under the laws and the constitution of the United States are 12 brought pursuant to 42 U.S. C. § 1983. INTRADISTRICT ASSIGNMENT 13 14 2. This case arose in Contra Costa County, California and, pursuant to Rule 3-3(c) of 15 the Local Rules of the Northern District of California, should be assigned to either the San 16 Francisco or Oakland Division of the Northern District. 17 PARTIES 18 3. Plaintiff LARRY EVANS is a resident of the City of Antioch, County of Contra 19 Costa, California. He brings this action on his own behalf and as guardian ad litem for his son, 20 M.E. 21 22 4. Plaintiff MEGAN EVANS is a resident of the City of Antioch, County of Contra Costa, California. She brings this action on her own behalf. 23 5. Plaintiff M.E. is a minor and a resident of the City of Antioch, County of Contra 24 Costa, California. 25 6. Plaintiff TERESA GREEN is a resident of the City of Antioch, County of Contra 26 Costa, California. She brings this action on her own behalf and as guardian ad litem for her son, 27 A.S. 28 7. Plaintiff A.S. is a minor and a resident of the City of Antioch, County of Contra SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -2- 1 Costa, California. 2 8. Plaintiff HEATHER CARRANZA is a resident of the City of Antioch, County of 3 Contra Costa, California. She brings this action on her own behalf and as guardian ad litem for her 4 son, L.C. 5 9. 6 Costa, California. 7 10. Plaintiff L.C. is a minor and a resident of the City of Antioch, County of Contra Plaintiff MICHELE SMITH is a resident of the City of Antioch, County of Contra 8 Costa, California. She brings this action on her own behalf and as guardian ad litem for her son, 9 M.M. 10 11. Plaintiff M.M. is a minor and a resident of the City of Antioch, County of Contra 11 Costa, California. 12 12. Plaintiff ARKEITHIA JOHNSON is a resident of the City of Antioch, County of 13 Contra Costa, California. She brings this action on her own behalf and as guardian ad litem for her 14 son, J.L. 15 16 13. Plaintiff J.L. is a minor and a resident of the City of Antioch, County of Contra Costa. 17 14. Plaintiff ROBERTO VIELMAS is a resident of the City of Antioch, County of 18 Contra Costa, California. He brings this action on his own behalf and as guardian ad litem for his 19 daughter G.V-B. 20 15. 21 Costa. 22 23 16. 28 17. Plaintiff S.G. is a minor and a resident of the City of Antioch, County of Contra 18. RAJ DITTA brings this matter on behalf of minor plaintiff S.G. as his guardian ad 19. Plaintiff MARIO ROJAS is a resident of the City of Antioch, County of Contra Costa. 26 27 Plaintiff MARIA BELTRAN is a resident of the City of Antioch, County of Contra Costa, California. She brings this action on her own behalf. 24 25 Plaintiff G.V-B. is a minor and a resident of the City of Antioch, County of Contra litem. SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -3- 1 Costa, California. He brings this action on his own behalf and as guardian ad litem for his son 2 M.R. 3 20. 4 Costa, California. 5 21. 6 7 Plaintiff M.R. is a minor and a resident of the City of Antioch, County of Contra Plaintiff DIOCELINA OCHOA is a resident of the City of Antioch, County of Contra Costa, California. She bring s this action on her own behalf. 22. At all times relevant to this complaint, defendant Theresa Allen-Caulboy (“ALLEN- 8 CAULBOY”) was a teacher employed by the Antioch Unified School District (“AUSD”), Antioch, 9 California. All actions alleged herein by ALLEN-CAULBOY were taken under color of state law 10 11 and in the course and scope of her employment with the AUSD. 23. Defendant Michael Green (“GREEN”) is the principal of MNO Grant Elementary 12 School in the AUSD. All actions alleged herein by GREEN were taken under color of state law 13 and in the course and scope of his employment with the AUSD. 14 24. Defendant Dr. David Wax (“WAX”) is the Director of Special Education for the 15 AUSD. All actions alleged herein by WAX were taken under color of state law and in the course 16 and scope of his employment with the AUSD. 17 25. Defendant Keith Rogenski (“ROGENSKI”) is the Assistant Superintendent in 18 charge of human resources for the AUSD. All actions alleged herein by ROGENSKI were taken 19 under color of state law and in the course and scope of his employment with the AUSD. 20 26. Defendant Kai Montgomery (“MONTGOMERY”) is the Coordinator of Special 21 Education for the AUSD. All actions alleged herein by MONTGOMERY were taken under color 22 of state law and in the course and scope of her employment with the AUSD. 23 27. The AUSD is a public entity duly incorporated and operating under California law 24 as a school district. Defendant AUSD is a public entity subject to Title II of the Americans with 25 Disabilities Act of 1990, the requirements of the Rehabilitation Act of 1973, the requirements of 26 California state law requiring full and equal access to public facilities pursuant to Government 27 Code §§ 11135 and 4450, et seq., and to all other legal requirements referred to in this Complaint. 28 28. In enacting Title II of the Americans with Disabilities Act Congress validly SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -4- 1 abrogated state sovereign immunity, and thus AUSD may be sued pursuant to Title II. Hason v. 2 Med. Bd. of California, 279 F.3d 1167, 1170 (9th Cir. 2002). By accepting Federal Rehabilitation 3 Act funds, AUSD waived its sovereign immunity under the Eleventh Amendment to claims 4 brought pursuant to § 504 of the Rehabilitation Act of 1973. Pugliese v. Dillenberg, 346 F.3d 937 5 (9th Cir. 2003) 6 29. Title VI of the Civil Rights Act provides that “A State shall not be immune under 7 the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a 8 violation of ... title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute 9 prohibiting discrimination by recipients of Federal financial assistance. 42 U.S.C. § 2000d–7(a)(1) 10 30. The true names and capacities of defendants sued as DOES 1 through 30 are 11 unknown to Plaintiffs and Plaintiffs pray leave to amend to allege the true names and capacities 12 when they are ascertained. 13 14 31. At all relevant times set forth herein, all Defendants acted in concert and as the agent of one another. FACTUAL ALLEGATIONS 15 16 A. ALLEGATIONS RELATING TO PLAINTIFF M.E. 17 32. M.E. was born on May 9, 2007 and has been diagnosed with autism. Larry and 18 Megan Evans are his parents. 19 33. M.E. is African American. 20 34. On or about October, 2012, M.E. was a special education student at MNO Grant 21 Elementary School in Antioch, California, assigned by the AUSD to the classroom of Special Day 22 Class teacher defendant ALLEN-CAULBOY. When he was assigned to ALLEN-CAULBOY’s 23 classroom, M.E. did not speak. He was five years old and weighed approximately 60 pounds. 24 35. Plaintiffs are informed and believe and thereon allege that M.E. and other special 25 needs students were subjected to ongoing verbal and physical abuse in ALLEN-CAULBOY’s 26 classroom. While in ALLEN-CAULBOY’s classroom, the teacher struck M.E., repeatedly held 27 him on the ground with her knee, and forcibly gouged his face. M.E. observed other students being 28 struck, pinched and subjected to other forms of physical abuse. M.E. heard the teacher verbally SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -5- 1 2 abuse students and refer to them by derogatory names. 36. Prior to entering MNO Grant Elementary School, M.E. had attended school for two 3 years in Clark County, Nevada. He was eager to attend and enjoyed school. While in ALLEN- 4 CAULBOY’s classroom, M.E.’s behavior underwent very significant adverse changes. He no 5 longer wanted to go to school and came home crying. Because he is nonverbal, M.E. was unable to 6 describe what was happening to him in ALLEN-CAULBOY’s classroom. M.E. became fearful of 7 having a shirt placed over his head and began to strenuously resist attempts by his parents to place 8 any garment over his head. M.E. also began acting aggressively towards his parents and siblings. 9 All of these behavioral changes were noticed during his attendance in ALLEN-CAULBOY’s class 10 and were not behaviors he had previously exhibited. While M.E. appears to now again enjoy 11 attending class at a new school, the other behaviors described have continued to this day. 12 37. Megan Evans and Larry Evans reported to defendants ALLEN-CAULBOY and 13 MONTGOMERY on numerous occasions the alarming changes in behavior they were observing in 14 M.E. Megan Evans and Larry Evans contacted ALLEN-CAULBOY and MONTGOMERY via 15 telephone on at least nineteen separate occasions yet no employee of the AUSD took any steps to 16 determine the source of the drastic behavior changes in M.E. nor took any steps to stop ALLEN- 17 CAULBOY’s abuse of M.E. and other children in the classroom. 18 38. The Evans did not know their child was being abused in ALLEN-CAULBOY’s 19 class, but they were very concerned about the impact that continued assignment to the class was 20 having on M.E. Eventually, the Evans became so disturbed by the distress M.E. was manifesting 21 and were so dissatisfied with the lack of response by the District, they held M.E. back from school. 22 23 24 39. After the Evans removed M.E. from the school, the AUSD reassigned M.E.to Turner Elementary School in January, 2013. 40. On or about March 13, 2013, the Evans were contacted by Detective Meads of the 25 Antioch Police Department regarding a criminal investigation of ALLEN-CAULBOY. Detective 26 Meads described to them the physical abuse that M.E. had endured at the hands of ALLEN- 27 CAULBOY. The Evans contacted MONTGOMERY and WAX, the Director of Special 28 Education. WAX stated that the District had conducted an “investigation”of ALLEN-CAULBOY. SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -6- 1 He confirmed the information the Evans had received from Detective Meads. WAX stated that 2 ALLEN-CAULBOY had been placed on administrative leave and had resigned from employment 3 with the AUSD. 4 41. Prior to March 13, 2013, the Evans did not suspect and had no reason to suspect, 5 that the AUSD was intentionally failing to provide information concerning their son’s abuse and 6 injuries. Nor did they know that ALLEN-CAULBOY’s classroom was an unhealthy educational 7 setting for M.E. and a hostile environment based on his disability. 8 9 42. Larry Evans and Megan Evans are informed and believe and thereon allege that ALLEN-CAULBOY physically abused and injured their son on various occasions and furthermore 10 psychologically and emotionally abused their son. Larry Evans and Megan Evans are further 11 informed and believe and thereon allege that ALLEN-CAULBOY’s classroom was an unhealthy 12 educational setting and a hostile environment for M.E. based on his race and disability. 13 43. The unreasonable, excessive and unwarranted battery on M.E. caused him and will 14 continue to cause him physical injury, pain and emotional distress. AUSD employees compounded 15 the injury by failing to promptly report it to M.E.’s parents or to responsible officials. 16 B. 17 44. 18 ALLEGATIONS RELATING TO PLAINTIFF A.S. A.S. was born on January 23, 2006 and has been diagnosed with autism. Teresa Green is his mother. 19 45. A.S. is African American. 20 46. On or about September, 2012, A.S. was a special education student at MNO Grant 21 Elementary School in Antioch, California, assigned by the AUSD to the classroom of Special Day 22 Class of defendant ALLEN-CAULBOY. 23 47. During the period A.S. was a student in ALLEN-CAULBOY’s class, A.S. exhibited 24 signs of anxiety, was sleeping poorly and waking at night, all of which were behavioral changes. 25 A.S. also appeared to be anxious about going to school as he indicated on various occasions that he 26 did not want to go to school. On a number of occasions, A.S. remarked “Bad Miss Caulboy”. 27 Teresa Green did not understand that one or more of the adults in the classroom were abusing A.S. 28 48. A.S. and other special needs students were subjected to ongoing verbal and physical SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -7- 1 abuse in ALLEN-CAULBOY’S classroom including, but not limited to the following incidents: 2 49. On or about January 15, 2013, A.S. indicated he did not want to go to school and 3 when they arrived to school he indicated to his mother that the teacher’s aide “Tasha”had hurt his 4 hand. 5 50. On or about January 17, 2013, Ms. Green received a telephone call and was 6 informed by an employee of AUSD that her son A.S. had been physically injured in the classroom 7 by his teacher defendant ALLEN-CAULBOY. Ms. Green was told that ALLEN-CAULBOY 8 pinched A.S.’s nipple in an attempt to “get him to comply”with her request. Ms. Green was 9 further informed that ALLEN-CAULBOY often yelled at A.S. using derogatory terms including 10 11 “retard”and used inappropriate physical force against A.S. 51. As a result of receiving this information, Ms. Green made a report to the Antioch 12 Police Department in January, 2013. Ms. Green’s report to police resulted in a police investigation 13 into how he was injured and who was responsible for his injuries. 14 52. A.S. has very limited ability to communicate. Based on the information received by 15 Teresa Green, she now believes that ALLEN-CAULBOY’s classroom was an unhealthy 16 educational setting for A.S. and a hostile environment based on his race and disability. 17 53. Subsequently, Ms. Green spoke with WAX, the Director of Special Education for 18 the AUSD. Ms. Green described to WAX the physical and emotional abuse her son was 19 experiencing in ALLEN-CAULBOY’s classroom and she advised him of her concerns relating to 20 A.S.’s safety. WAX advised Ms. Green that the AUSD was “aware”of other incidents involving 21 ALLEN-CAULBOY but that he could not discuss the details of other complaints due to an ongoing 22 “investigation”. 23 54. On February 15, 2013, Teresa Green received a letter from MNO Grant Elementary 24 Principal defendant GREEN. The letter advised parents that Special Day Class teacher defendant 25 ALLEN-CAULBOY had “resigned her teaching position with the AUSD”and would not be 26 returning to MNO Grant Elementary School. 27 28 55. Teresa Green is informed and believes and thereon alleges that ALLEN-CAULBOY physically abused and injured her son on various occasions and furthermore psychologically and SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -8- 1 emotionally abused her son. Teresa Green is further informed and believes and thereon alleges that 2 ALLEN-CAULBOY’s classroom was an unhealthy educational setting and a hostile environment 3 for A.S. based on his race and disability. 4 56. Prior to January 15, 2013, Teresa Green did not suspect and had no reason to 5 suspect that the AUSD was intentionally failing to provide information concerning her son’s 6 injuries. 7 57. The unreasonable, excessive and unwarranted battery on A.S. caused him and will 8 continue to cause him physical injury, pain and emotional distress. AUSD employees compounded 9 the injury by failing to promptly report it to A.S.’s parent or to responsible officials. 10 C. ALLEGATIONS RELATING TO PLAINTIFF L.C. 11 58. L.C. was born on March 30, 2007 and has been diagnosed with autism. Heather 12 Carranza is her mother. 13 59. L.C. is African American. 14 60. During the 2012/2013 school year, L.C. was a special education student at MNO 15 Grant Elementary School in Antioch, California, assigned by the AUSD to the classroom of 16 Special Day Class teacher defendant ALLEN-CAULBOY. 17 18 19 61. L.C. and other special needs students were subjected to ongoing verbal and physical abuse in ALLEN-CAULBOY’s classroom including, but not limited to the following incidents: 62. On or about December, 2012, Heather Carranza noticed physical injuries on L.C.’s 20 body and asked her daughter how she had been injured. L.C. told her mother that her teacher, 21 defendant ALLEN-CAULBOY, had injured her. 22 63. Heather Carranza is informed and believes and thereon alleges that ALLEN- 23 CAULBOY physically abused and injured her daughter on various occasions and furthermore 24 psychologically and emotionally abused her daughter. Heather Carranza is further informed and 25 believes and thereon alleges that ALLEN-CAULBOY’s classroom was a hostile environment for 26 L.C. based on her disability. 27 28 64. As a result of receiving this information, Heather Carranza made an immediate telephone report to the principal of MNO Grant Elementary School, defendant GREEN in SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB -9- 1 December, 2012 leaving a detailed voicemail message which complained of ALLEN-CAULBOY’s 2 conduct and advising GREEN of the abuse occurring in this classroom. 3 65. In January, 2013, Heather Carranza observed multiple bruises on L.C.’s body. L.C. 4 told her mother that ALLEN-CAULBOY had squeezed her elbow which left a visible bruise and 5 had pushed her down. 6 7 8 9 10 11 12 66. Heather Carranza made a further telephone report to GREEN in January, 2013 again leaving a voicemail message reporting incidents in which ALLEN-CAULBOY injured L.C.. 67. When GREEN did not return her call, Heather Carranza made additional calls to him in an attempt to discuss this serious matter with him. 68. When she finally reached GREEN by telephone, GREEN advised Heather Carranza to put her complaint in writing, which she did by sending him an email describing her concerns. 69. GREEN and other mandated reporters employed by the AUSD failed to report the 13 suspected child abuse as required by the Child Abuse and Neglect Reporting Act. On information 14 and belief, employees of the AUSD instead caused an investigation of Ms. Carranza by the Child 15 and Family Services Bureau despite their knowledge that ALLEN-CAULBOY was in fact the 16 person physically abusing L.C. and other children in the class. 17 70. Based on the information received by Ms. Carranza in December, 2012, and 18 January, 2013, she believes that ALLEN-CAULBOY’s classroom was an unhealthy educational 19 setting for L.C. and a hostile environment based on her race and disability. 20 71. On February 15, 2013, Ms. Carranza received a letter from MNO Grant Elementary 21 Principal defendant GREEN. The letter advised parents that Special Day Class teacher defendant 22 ALLEN-CAULBOY had “resigned her teaching position with the AUSD”and would not be 23 returning to MNO Grant Elementary School. 24 72. Prior to December, 2012, Heather Carranza did not suspect and had no reason to 25 suspect that the AUSD was intentionally failing to provide information concerning her daughter’s 26 injuries. 27 28 73. The unreasonable, excessive and unwarranted battery on L.C. caused her and will continue to cause her physical injury, pain and emotional distress. AUSD employees compounded SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 10 - 1 the injury by failing to promptly report it to L.C.’s parent or to responsible officials. 2 D. ALLEGATIONS RELATING TO PLAINTIFF M.M. 3 74. M.M. was born on August 23, 2006 and has been diagnosed with autism. Michele 4 Smith is his mother. 5 75. M.M. is African American. 6 76. On or about September, 2012, M.M. was a special education student at MNO Grant 7 Elementary School in Antioch, California, assigned by the AUSD to the classroom of Special Day 8 Class teacher ALLEN-CAULBOY. 9 77. M.M. and other special needs students were subjected to ongoing verbal and 10 physical abuse in ALLEN-CAULBOY’s classroom including, but not limited to the following 11 incidents: 12 78. On or about November 28, 2012, M.M. indicated to his mother that ALLEN- 13 CAULBOY had struck him in the head and face a number of times and also taunted him verbally 14 and called him demeaning names and racial epithets. 15 79. Ms. Smith is informed and believes and thereon alleges that ALLEN-CAULBOY 16 physically abused and injured her son on various occasions and furthermore psychologically and 17 emotionally abused her son. Ms. Smith is further informed and believes and alleges that ALLEN- 18 CAULBOY’s classroom was a hostile environment for M.M. based on his disability and his race. 19 80. As a result of receiving this information, Ms. Smith made reports to GREEN, 20 principal of MNO Grant Elementary School, WAX, Director of Special Education for AUSD, 21 MONTGOMERY, Coordinator of Special Education for AUSD, Child Protective Services, and the 22 Antioch Police Department. Ms. Smith’s report to police resulted in a police investigation into 23 how he was injured and who was responsible for his injuries. 24 81. Ms. Smith has requested the results of the police investigation and she has been 25 advised that the police investigation included contacting employees of the AUSD, including 26 employees of MNO Grant Elementary School. 27 28 82. In early December, 2012, Ms. Smith spoke with WAX, the Director of Special Education for AUSD. Ms. Smith described to WAX the physical and emotional abuse her son was SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 11 - 1 experiencing in ALLEN-CAULBOY’s classroom and she advised him of her concerns relating to 2 M.M.’s safety. WAX advised Ms. Smith that the district was “aware”of other incidents involving 3 ALLEN-CAULBOY but that he could not discuss the details of other complaints due to an ongoing 4 “investigation”. WAX attempted to dissuade Ms. Smith from contacting the police or the media 5 concerning the mistreatment of her son. 6 7 8 9 10 11 83. No employee of the AUSD has ever provided Ms. Smith with the results of the District’s investigation. 84. Prior to November, 28, 2012, Ms. Smith did not suspect and had no reason to suspect that AUSD was intentionally failing to provide information concerning her son’s injuries or the hostile and unhealthy education environment in his classroom. 85. Michele Smith is informed and believes and thereon alleges that ALLEN- 12 CAULBOY physically abused and injured her son on various occasions and furthermore 13 psychologically and emotionally abused her son. Michele Smith is further informed and believes 14 and thereon alleges that ALLEN-CAULBOY’s classroom was an unhealthy educational setting and 15 a hostile environment for M.M. based on his race and disability. 16 86. The unreasonable, excessive and unwarranted battery on M.M. caused him and will 17 continue to cause him physical injury, pain and emotional distress. AUSD employees compounded 18 the injury by failing to promptly report it to M.M.’s parents or to responsible officials. 19 E. 20 87. 21 ALLEGATIONS RELATING TO PLAINTIFF J.L. J.L. was born on March 27, 2007 and has been diagnosed with autism. Arkeithia Johnson is his mother. 22 88. J.L. is African American. 23 89. From approximately August 2012 to January 2013, J.L. was a special education 24 student at MNO Grant Elementary School in Antioch, California, assigned by the AUSD to the 25 classroom of Special Day Class teacher defendant ALLEN-CAULBOY. 26 90. During the period J.L. was a student in ALLEN-CAULBOY’s class, Ms. Johnson 27 observed ALLEN-CAULBOY being verbally aggressive in the classroom. Ms. Johnson also 28 observed that ALLEN-CAULBOY hung a sign in the classroom that said “You Yell, I Yell.” SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 12 - 1 2 91. During the period J.L. was a student in ALLEN-CAULBOY class, ALLEN- CAULBOY discouraged Ms. Johnson from observing the classroom. 3 92. During the period J.L. was a student in ALLEN-CAULBOY’s class, J.L. exhibited 4 signs of aggressiveness, which was a change in his behavior. J.L. also appeared to be anxious 5 about going to school, as he indicated on various occasions that he did not want to go to school. 6 93. On or about October 9, 2012, J.L. told his mother that someone at school was hitting 7 him. When Ms. Johnson asked ALLEN-CAULBOY about this incident, ALLEN-CAULBOY 8 stated that another student was responsible. 9 94. On or about November 27, 2012, Ms. Johnson observed multiple bruises on J.L.’s 10 body, including a golf ball-size knot on his head and bruises on his forearm which were consistent 11 with being grabbed by an adult. 12 95. On or about April 12, 2013, Ms. Johnson spoke to an AUSD employee and 13 indicated that J.L. had been in ALLEN-CAULBOY’s class. The employee asked Ms. Johnson what 14 she thought about the allegations of abuse relating to ALLEN-CAULBOY. This is the first time 15 Ms. Johnson had heard about the allegations. 16 96. Prior to April 12, 2013 Ms. Johnson did not suspect and had no reason to suspect 17 that the AUSD was intentionally failing to provide information concerning her son's abuse and 18 injuries. Nor did she know that ALLEN-CAULBOY's classroom was an unhealthy educational 19 setting for M.E. and a hostile environment based on his race and disability. 20 97. Ms. Johnson is informed and believes and thereon alleges that ALLEN-CAULBOY 21 physically abused and injured her son on various occasions and furthermore psychologically and 22 emotionally abused her son. Ms. Johnson is further informed and believes and thereon alleges that 23 ALLEN-CAULBOY's classroom was an unhealthy educational setting and a hostile environment 24 for J.L. based on his race and disability. 25 98. The unreasonable, excessive and unwarranted battery on J.L. caused him and will 26 continue to cause him physical injury, pain and emotional distress. AUSD employees compounded 27 the injury by failing to promptly report it to J.L.’s parent or to responsible officials. 28 /// SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 13 - 1 F. ALLEGATIONS RELATING TO PLAINTIFF G.V-B. 2 99. 3 G.V-B. was born on April 14, 2007 and has been diagnosed with autism spectrum disorder. Roberto Vielmas and Maria Beltran are her parents. 4 100. G.V-B. is Mexican American. 5 101. From approximately August 2012 to January 2013, G.V-B. was a special education 6 student at MNO Grant Elementary School in Antioch, California, assigned by the AUSD to the 7 classroom of Special Day Class teacher defendant ALLEN-CAULBOY. 8 9 102. ALLEN-CAULBOY was physically and verbally abusive toward G.V-B. She frequently yelled at G.V-B. and caused G.V-B. to cry in response to ALLEN-CAULBOY’s 10 aggressive and demeaning language. ALLEN-CAULBOY reduced G.V-B. to tears on a nearly 11 daily basis. 12 103. Throughout the fall of 2012, G.V-B came home with red marks on her neck, torso 13 and back. When her mother asked ALLEN-CAULBOY about the marks, ALLEN-CAULBOY 14 concealed the cause of the injuries and the fact that she caused them. For instance, once she told 15 Ms. Beltran that injuries on her neck were caused by the seatbelt on the bus. On other occasions, 16 she falsely stated that G.V-B caused the injuries herself. 17 104. When she was a student in ALLEN-CAULBOY’s classroom, G.V-B. frequently 18 cried before going to school even though she had previously been eager to attend school. At home, 19 she began to repeat what she heard in ALLEN-CAULBOY’s classroom, yelling “stop that”and 20 “don’t do that.” 21 105. G.V-B’s parents have a limited command of English. They did not learn about the 22 conditions in ALLEN-CAULBOY's classroom until after complaints of abuse were publicized in 23 April, 2013. Prior to that time, G.V-B’s parents did not suspect and had no reason to suspect that 24 the AUSD was intentionally failing to provide information concerning their daughter’s abuse and 25 injuries. Nor did they know that ALLEN-CAULBOY's classroom was an unhealthy educational 26 setting for G.V-B. and a hostile environment based on her race and disability. 27 28 106. ROBERTO VIELMAS and MARIA BELTRAN are informed and believe and thereon allege that ALLEN-CAULBOY physically abused and injured their daughter on various SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 14 - 1 2 occasions and furthermore psychologically and emotionally abused their daughter.. 107. ROBERTO VIELMAS and MARIA BELTRAN are further informed and believe 3 and thereon allege that ALLEN-CAULBOY's classroom was a hostile environment for G.V-B. 4 based on her race and disability. 5 108. The unreasonable, excessive and unwarranted battery on G.V-B. caused her and will 6 continue to cause her physical injury, pain and emotional distress. AUSD employees compounded 7 the injury by failing to promptly report it to G.V-B.’s parents or to responsible officials. 8 G. 9 109. 10 ALLEGATIONS RELATING TO PLAINTIFF S.G. S.G. was born on January 14, 2007 and has been diagnosed with autism. RAJ DITTA is his guardian ad litem. 11 110. S.G. is African American. 12 111. From approximately August 2012 to January 2013, S.G. was a special education 13 student at MNO Grant Elementary School in Antioch, California, assigned by the AUSD to the 14 classroom of Special Day Class teacher defendant ALLEN-CAULBOY. 15 112. RAJ DITTA is informed and believes and thereon alleges that ALLEN-CAULBOY 16 physically abused and injured S.G. on various occasions and furthermore psychologically and 17 emotionally abused S.G. 18 19 20 113. RAJ DITTA is further informed and believes and thereon alleges that ALLEN- CAULBOY's classroom was a hostile environment for S.G. based on his race and disability. 114. ALLEN-CAULBOY made S.G. lie face down on a piece of carpet she called “the 21 better choice rug.” She made S.G. and other students in the class sit with their faces down in 22 pillows she called “scream pillows.” 23 24 25 115. RAJ DITTA is informed and believes and thereon alleges that S.G. observed ALLEN-CAULBOY yell at other students, causing them to cry. 116. RAJ DITTA is informed and believes and thereon alleges that ALLEN-CAULBOY 26 pushed S.G. by the head causing him to hit the floor with his head. She also pinched S.G. and 27 struck him. 28 117. The unreasonable, excessive and unwarranted battery on S.G. caused him and will SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 15 - 1 continue to cause him physical injury, pain and emotional distress. 2 H. 3 118. 4 ALLEGATIONS RELATING TO PLAINTIFF M.R. M.R. was born on September 8, 2006 and has been diagnosed with autism. MARIO ROJAS AND DIOCELINA OCHOA are his parents. 5 119. M.R. is Mexican American. 6 120. From approximately August 2012 to January 2013, M.R. was a special education 7 student at MNO Grant Elementary School in Antioch, California, assigned by the AUSD to the 8 classroom of Special Day Class teacher defendant ALLEN-CAULBOY. 9 121. Before joining ALLEN-CAULBOY’s classroom, M.R. loved attending school. 10 Soon after starting school in August 2012, M.R. began exhibiting behaviors he had not previously 11 exhibited. He began to cry before leaving for school. He frequently wet his pants and became very 12 angry after coming home from school. 13 14 15 122. While a student in ALLEN-CAULBOY’s classroom, M.R. received bruises on his buttocks, shins, legs and scrapes on his lower back. 123. M.R.’s parents have a limited command of English. They learned from a Spanish- 16 speaking employee at school that ALLEN-CAULBOY had left the class for “personal reasons.” 17 Later, while attending an English class at school, M.R.’s mother heard rumors that a teacher had 18 been hitting students in class. Eventually, M.R.’s parents learned that the complaints were against 19 their son’s teacher. Prior to that time, M.R.’s parents did not suspect and had no reason to suspect 20 that the AUSD was intentionally failing to provide information concerning their son’s abuse and 21 injuries. Nor did they know that ALLEN-CAULBOY's classroom was an unhealthy educational 22 setting for M.R. and a hostile environment based on his race and disability. 23 124. MARIO ROJAS and DIOCELINA OCHOA are informed and believe and thereon 24 allege that ALLEN-CAULBOY physically abused and injured their son on various occasions and 25 furthermore psychologically and emotionally abused their son. MARIO ROJAS and DIOCELINA 26 OCHOA are further informed and believe and thereon allege that ALLEN-CAULBOY's classroom 27 was a hostile environment for M.R. based on his race and disability. 28 125. The unreasonable, excessive and unwarranted battery on M.R. caused him and will SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 16 - 1 continue to cause him physical injury, pain and emotional distress. AUSD employees compounded 2 the injury by failing to promptly report it to M.R.’s parents or to responsible officials. 3 I. 4 126. 5 (a) Defendant ALLEN-CAULBOY treated African-American and Mexican-American 6 7 8 ALLEGATIONS COMMON TO ALL PLAINTIFFS PLAINTIFFS are informed and believe and thereon allege that: students more harshly than Caucasian students; (b) Defendant ALLEN-CAULGOY directed racial epithets toward African-American students; 9 (c) Defendants GREEN, WAX, ROGENSKI and MONTGOMERY and other unknown 10 district and school officials were aware of ALLEN-CAULBOY’s propensity to treat 11 African-American and Mexican-American students more harshly than Caucasian 12 students and were aware of her use of racial epithets in the classroom; and 13 (d) Defendants GREEN, WAX, ROGENSKI and MONTGOMERY were deliberately 14 indifferent to the risk that plaintiffs and other African-American and Mexican-American 15 students would be the object of racial harassment in ALLEN-CAULBOY’s classroom. 16 127. On information and belief, Defendants GREEN, WAX, ROGENSKI and 17 MONTGOMERY and other unknown district and school officials, received reports from several 18 sources that ALLEN-CAULBOY was physically and verbally abusing children in her classroom. 19 Defendants failed to act on the reports that they received and attempted to prevent parents from 20 reporting suspicions of child abuse to police agencies. As such, they were deliberately indifferent 21 to the likelihood that students in ALLEN-CAULBOY’s classroom would be subjected to violations 22 of their constitutional rights. 23 128. On information and belief, all of the children in ALLEN-CAULBOY’s classroom 24 were subjected to a hostile educational environment based on their disability. They were subjected 25 to - and observed other children being subjected to - demeaning and insulting language, hostile and 26 aggressive interactions with teachers and aides, and physical abuse including but not limited to 27 hitting, gouging, pinching and restraining children. The physical abuse was severe enough to cause 28 bruising and other injuries. The verbal abuse caused the children intense fear and other SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 17 - 1 psychological damage which continue to the present. 2 129. On information and belief, GREEN, WAX, ROGENSKI, MONTGOMERY and 3 other unknown district and school officials, were aware of the incidents and of the potential for 4 continuing harm to the children in ALLEN-CAULBOY’s classroom, but failed to promptly inform 5 the police department, child protective services or the parents of the children. On information and 6 belief, GREEN, WAX, ROGENSKI, MONTGOMERY and other unknown district and school 7 officials observed or had knowledge of information giving rise to a reasonable suspicion that 8 ALLEN-CAULBOY had committed acts of child abuse or neglect as defined by Penal Code 9 § 11165.3 against students in her classroom. These employees were mandated reporters as defined 10 by Penal Code § 1165.7, but did not report the abuse or neglect to an agency defined in Penal Code 11 §11165.9. As a result, Plaintiffs Larry Evans, Megan Evans, Teresa Green, Heather Carranza, 12 Michele Smith, Arkeithia Johnson, Roberto Vielmas, Maria Beltran, Roberto Vielmas, Mario Rojas 13 and Diocelina Ochoa were deprived of the ability to comfort their children or to provide 14 appropriate counseling, medical and/or psychological care. The failure to advise the parents 15 promptly gave rise to the severe emotional distress in that they suffered a loss of trust in school 16 officials and felt betrayed that they did not learn what their children had experienced at the time of 17 the injuries when they could have responded immediately with appropriate parental support and 18 care. 19 130. As a further proximate result of Defendants’action as alleged herein, minor 20 Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G. and M.R. have suffered physical injuries and 21 pain and emotional distress and suffering. Plaintiffs Larry Evans, Megan Evans, Teresa Green, 22 Heather Carranza, Michele Smith, Arkeithia Johnson, Roberto Vielmas, Maria Beltran, Roberto 23 Vielmas, Mario Rojas and Diocelina Ochoa have suffered emotional distress and suffering as a 24 result of the conduct of defendants as herein above described. 25 131. As a further proximate result of Defendants’actions as alleged herein, Plaintiffs 26 Larry Evans, Megan Evans, Teresa Green, Heather Carranza, Michele Smith, Arkeithia Johnson, 27 Roberto Vielmas, Maria Beltran, Roberto Vielmas, Mario Rojas and Diocelina Ochoa have 28 incurred and will continue to incur medical expenses. SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 18 - 1 132. PLAINTIFFS are informed and believe and thereon allege that Defendants ALLEN- 2 CAULBOY, GREEN, WAX, ROGENSKI and MONTGOMERY’s conduct was malicious and/or 3 in reckless disregard of the plaintiffs' rights. 4 133. Plaintiffs have filed claims with AUSD pursuant to Government Code §§ 910, et 5 seq. AUSD has not responded to the claims. In the event they are denied plaintiffs will seek leave 6 to court to amend the complaint to allege additional causes of action. 7 FIRST CLAIM FOR RELIEF 8 (Violation of Constitutional Rights, 42 U.S.C. § 1983; All Plaintiffs vs. Defendants GREEN, 9 WAX, ROGENSKI and MONTGOMERY) 10 11 12 134. Plaintiffs incorporate and reallege by reference the foregoing paragraphs 1 through 134 inclusive, as if they were fully set forth herein. 135. Defendant ALLEN-CAULBOY violated minor Plaintiffs M.E., A.S., L.C., M.M., 13 J.L., G.V-B., S.G. and M.R.’s rights under the Fourth Amendment to the United States Constitution 14 by actions, including but not limited to utilizing unjustified and unreasonable force against minor 15 Plaintiffs. 16 136. Defendant ALLEN-CAULBOY violated minor Plaintiffs M.E., A.S., L.C., M.M., 17 J.L., G.V-B., S.G. and M.R.’s rights under the Equal Protection Clause of the Fourteenth 18 Amendment to the United States Constitution by actions, including but not limited to, depriving 19 Plaintiffs of equal protection under the law on the basis of race. 20 137. Defendant GREEN, WAX, ROGENSKI and MONTGOMERY violated minor 21 Plaintiffs M.E., A.S., L.C. and M.M.’s rights under the Fourth Amendment to the United States 22 Constitution by actions, including but not limited to, acting with deliberate indifference to the risk 23 of harm to plaintiffs from ALLEN-CAULBOY. 24 138. Defendants ALLEN-CAULBOY, GREEN, WAX, ROGENSKI and 25 MONTGOMERY violated Plaintiffs Larry Evans, Megan Evans, Teresa Green, Heather Carranza, 26 Michele Smith, Arkeithia Johnson, Roberto Vielmas, Maria Beltran, Roberto Vielmas, Mario Rojas 27 and Diocelina Ochoa and M.E., A.S., L.C., M.M., J.L., G.V-B., S.G. and M.R.’s rights under the 28 Due Process Clause to the Fourteenth Amendment to the United States Constitution by actions, SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 19 - 1 2 including but not limited to: a. Intentionally interfering with the parent child relationship by concealing information 3 regarding the physical and emotional trauma inflicted on M.E., A.S., L.C., M.M., J.L., G.V-B., 4 S.G., and M.R. by ALLEN-CAULBOY. 5 b. Intentionally interfering with Larry Evans, Megan Evans, Teresa Green, Heather 6 Carranza, Michele Smith Arkeithia Johnson, Roberto Vielmas, Maria Beltran, Roberto Vielmas, 7 Mario Rojas and Diocelina Ochoa and M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R.’s right 8 to provide and receive nurture, support and comfort regarding a highly traumatic events. 9 10 139. As a proximate result of the violations alleged above, Plaintiffs have suffered damages as heretofore alleged. 11 SECOND CLAIM FOR RELIEF 12 (Discrimination in Violation of the Americans With Disabilities Act; Plaintiffs M.E., A.S., 13 L.C., M.M., J.L., G.V-B., S.G. and M.R. vs. the DISTRICT) 14 140. Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. incorporate and 15 reallege by reference the foregoing paragraphs 1 through 140, inclusive, as if they were fully set 16 forth herein. 17 141. Effective January 26, 1992, Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., 18 and M.R. were entitled to the protections of the "Public Services" provision of Title II of the 19 Americans with Disabilities Act of 1990. Title II, Subpart A prohibits discrimination by any 20 "public entity," including any state or local government, as defined by 42 USC § 12131, section 21 201 of the ADA. 22 142. Pursuant to 42 USC §12132, Section 202 of Title II, no qualified individual with a 23 disability shall, by reason of such disability, be excluded from participation in or be denied the 24 benefits of the services, programs or activities of a public entity, or be subjected to discrimination 25 by any such entity. Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. were at all times 26 relevant herein a qualified individual with a disability as therein defined. 27 28 143. AUSD has failed in its responsibilities under Title II to provide its services, programs and activities in a full and equal manner to disabled persons as described hereinabove, SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 20 - 1 including failing to ensure that educational services are provided on an equal basis to children with 2 disabilities and free of hostility toward their disability. 3 144. AUSD has further failed in its responsibilities under Title II to provide its services, 4 programs and activities in a full and equal manner to disabled persons as described hereinabove by 5 subjecting plaintiff to a hostile educational environment. 6 145. As a result of AUSD’s failure to comply with its duty under Title II, Plaintiffs M.E., 7 A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. have suffered damages including special and 8 general damages according to proof. 9 THIRD CLAIM FOR RELIEF 10 (Violation of § 504 of the Rehabilitation Act of 1973; Plaintiffs M.E., A.S., L.C., M.M., J.L., 11 G.V-B., S.G., and M.R. vs. the DISTRICT) 12 146. Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. incorporate and 13 reallege by reference the foregoing paragraphs 1 through 146, inclusive, as if they were fully set 14 forth herein. 15 147. Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. are informed and 16 believe and therefore allege that AUSD is and has been at all relevant times the recipient of federal 17 financial assistance, and that part of that financial assistance has been used to fund the operations, 18 construction and/or maintenance of the specific public facilities described herein and the activities 19 that take place therein. 20 148. By their actions or inactions in denying equal access to educational services and by 21 subjecting plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. to a hostile educational 22 environment, defendant has violated plaintiff M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and 23 M.R.’s rights under § 504 of the Rehabilitation Act of 1973, 29 USC § 794, and the regulations 24 promulgated thereunder. 25 149. As a result of the District’s failure to comply with its duty under § 504 of the 26 Rehabilitation Act of 1973, 29 USC § 794, and the regulations promulgated thereunder, plaintiffs 27 M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. have suffered damages including special and 28 general damages according to proof. SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 21 - 1 FOURTH CLAIM FOR RELIEF 2 (Violation of Title VI of the Civil Rights Act of 1964; Plaintiffs M.E., A.S., L.C., M.M., 3 J.L., G.V-B., S.G., and M.R. vs. the DISTRICT) 4 150. Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. incorporate and 5 reallege by reference the foregoing paragraphs 1 through 150, inclusive as if they were fully set 6 forth herein. 7 151. Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. are informed and 8 believe and therefore allege that AUSD is and has been at all relevant times the recipient of federal 9 financial assistance, and that part of that financial assistance has been used to fund the operations, 10 construction and/or maintenance of the specific public facilities described herein and the activities 11 that take place therein. 12 152. Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. are informed and 13 believe that they were specifically targeted and harassed by ALLEN-CAULBOY on the basis of 14 their race. 15 16 153. AUSD had actual notice that ALLEN-CAULBOY’s harassment of Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. was based on race. 17 154. By failing to conduct an adequate investigation of known or suspected misconduct, 18 AUSD exhibited deliberate indifference to the racial harassment of Plaintiffs M.E., A.S., L.C., 19 M.M., J.L., G.V-B., S.G., and M.R. 20 155. AUSD’s failure to promptly and appropriately respond to the racial harassment 21 resulted in Plaintiffs M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. being excluded from 22 participation in, being denied the benefits of, and being subjected to discrimination in the District’s 23 education program in violation of Title VI. 24 156. As a result of AUSD’s failure to comply with its duty under § 601 of Title VI of the 25 Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., and its implementing regulations, Plaintiffs 26 M.E., A.S., L.C., M.M., J.L., G.V-B., S.G., and M.R. have suffered damages including special and 27 general damages according to proof. 28 /// SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 22 - JURY DEMAND 1 2 Plaintiffs hereby demands that this matter be tried to a jury. PRAYER 3 4 WHEREFORE, Plaintiffs prays for judgment as follows: 5 1. Compensatory damages to Plaintiffs for injury, emotional distress and for medical 6 expenses; 7 2. 8 and MONTGOMERY, and each of them; 9 3. Attorney’s fees and costs; and 10 4. Such other and further relief as the court deems just and proper. 11 Dated: August 2, 2013 Punitive damages against Defendants ALLEN-CAULBOY, GREEN, WAX, ROGENSKI HINTON ALFERT & KAHN LLP 12 13 By: 14 /s/ PETER W. ALFERT Attorneys for Plaintiffs 15 16 Dated: August 2, 2013 17 LAW OFFICE OF TODD BOLEY By: 18 /s/ TODD BOLEY Attorneys for Plaintiffs 19 20 21 22 23 24 25 26 27 28 SECOND AMENDED COMPLAINT FOR DAMAGES C-13-1476-LB-ARB - 23 -