                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 01 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LUZ AL-RIFAI; et al.,                            No. 11-15361

              Plaintiffs - Appellants,           D.C. No. 2:10-cv-02526-MCE-
                                                 CMK
  v.

WILLOWS UNIFIED SCHOOL                           MEMORANDUM *
DISTRICT; et al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                           Submitted February 13, 2012 **
                             San Francisco, California

Before: TASHIMA and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
       Plaintiffs appeal the district court’s dismissal with prejudice of their

complaint against Willows Unified School District and three district employees.

Plaintiffs allege violations of the First and Fourteenth Amendments, with the

remedies provided by 42 U.S.C. § 1983, including: (1) equal protection on the

basis of race, religion, and national origin; (2) equal protection on the basis of sex;

(3) freedom of speech and religion; and (4) retaliatory treatment based on the

exercise of speech. Plaintiffs also allege impermissible sexual harassment in

violation of Title IX and four California state law violations: negligence, negligent

training and supervision, and intentional and negligent infliction of emotional

distress.

       Willows Unified School District, a California school district, is a state

agency for purposes of Eleventh Amendment immunity. Belanger v. Madera, 963

F.2d 248, 251-53 (9th Cir. 1992). Furthermore, the three school administrators

sued in their “official capacities” are immune from suit for both federal and state

law claims. Id. at 254; see also Gilbreath v. Cutter Biological, Inc., 931 F.2d

1320, 1327 (9th Cir. 1991). Therefore, we AFFIRM the district court’s order

insofar as it dismissed all claims against the school district (except the Title IX

claim) and Plaintiffs’ “official capacity” claims with prejudice.




                                           -2-
      As Plaintiffs concede, Title IX does not create a private right of action

against school officials, teachers, and other individuals who are not direct

recipients of federal funding. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246,

257 (2009). Accordingly, we AFFIRM the district court’s order dismissing the

Title IX claim against the individual Defendants with prejudice.

      As against Willows Unified School District, Plaintiffs have not properly

pled a claim under Title IX because Plaintiffs fail to allege sexual harassment that

is “so severe, pervasive, and objectively offensive” that it deprived Luz and Salam

of “access to the educational opportunities or benefits provided by [Willows

School District].” See Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650-52

(1999). The specific allegations amount to simple teasing and name-calling–for

which Title IX damages are not available. See id. at 652. We therefore AFFIRM

the district court’s order dismissing Plaintiffs’ Title IX claim against Willows

School District.

      The district court erred in holding that the individual defendants were only

sued in their “official capacities.” Plaintiffs, in the § 1983 and state law portions of

the Second Amended Complaint, request damages “against all Defendants in their

individual capacities.” Moreover, Plaintiffs allege that Defendants were “acting

under color of State and Local Law” and discriminated against Plaintiffs “because


                                          -3-
of Plaintiffs’ ethnic origins, race and religious beliefs.” Therefore, Plaintiffs’

claims against the individual Defendants were “personal capacity” claims and

should have been analyzed as such by the district court. Ashker v. Cal. Dep’t of

Corr., 112 F.3d 392, 395 (9th Cir. 1997); see also Romano v. Bible, 169 F.3d 1182,

1185-86 (9th Cir. 1999).

      Even though the district court should have analyzed the remaining federal

claims as “personal capacity” claims, Plaintiffs still fail to state a claim.

      Plaintiffs are correct that a student can bring a § 1983 sex discrimination

claim based on a school administrator’s failure to investigate peer-to-peer

harassment. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th

Cir. 2003). Plaintiffs have not, however, pled any facts that suggest that the

individual Defendants discriminated against Plaintiffs Luz and Salam with an

impermissible motive or acted with gender animus in failing to respond to the

gender oriented name calling and teasing that allegedly occurred. See id at 1135.

Plaintiffs’ general allegation that Luz and Salam were subjected to unspecified

unwanted sexual touching is impermissibly vague. Similarly, Plaintiffs fail to

allege facts showing that the individual Defendants intentionally discriminated

against Plaintiffs on the basis of their race, religion, or national origin. See

Monteiro v. Tempe Union High Schl. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998).


                                           -4-
Therefore, we AFFIRM the district court’s order dismissing Plaintiffs’

discrimination claims against the individual Defendants.

      Our cases require that Plaintiffs be given an opportunity to amend because:

(1) there is no evidence of any undue delay, bad faith, dilatory motive, or prejudice

to the opposing party; (2) Plaintiffs have not had an opportunity to cure previously

identified deficiencies in their complaint; and (3) it is not clear that the Title IX and

§ 1983 discrimination claims could not be saved by amendment. See Lipton v.

Pathogenesis Corp., 284 F.3d 1027, 1038 (9th Cir. 2002); Moore v. Kayport

Package Express, 885 F.2d 531, 538 (9th Cir.1989). Accordingly, we REVERSE

the district court order insofar as it denies Plaintiffs leave to amend the Title IX

claim and the § 1983 sex and race, religion, national origin discrimination claims.

      Lastly, the district court erred in dismissing Plaintiffs’ state law claims

against the individual Defendants with prejudice because the Eleventh Amendment

does not bar pendent state claims by Plaintiffs against state officials acting in their

individual capacities. See Pena v. Gardner, 976 F.2d 469, 473 (9th Cir. 1992).

Accordingly, we REVERSE the district court’s order dismissing the state law

claims with prejudice and REMAND those claims to be considered as if the

individual Defendants were sued in their personal capacities.

      AFFIRMED IN PART, REVERSED IN PART, REMANDED.


                                           -5-
