                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 29 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CECILIA WILSON, individually and as             No.    18-35039
husband and wife; et al.,
                                                D.C. No. 3:15-cv-05863-RJB
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

LONGVIEW SCHOOL DISTRICT, a
municipal corporation; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert J. Bryan, District Judge, Presiding

                       Argued and Submitted March 8, 2019
                               Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and JACK, ** District Judge.

      Plaintiff-Appellants (Plaintiffs) sued Defendant-Appellees (Defendants)

under 42 U.S.C. § 1983 and state law for damages arising out of a Longview

School District teacher’s alleged placement of five general education students in an


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
isolation booth as a form of discipline. The case went to trial. The district court

dismissed some of Plaintiffs’ claims under Federal Rule of Civil Procedure 50(a),

and the jury found for Defendants on the remaining claims. On appeal, Plaintiffs

challenge several evidentiary rulings, the dismissal of some claims under Rule

50(a), certain jury instructions, and the district court’s decision to tax costs against

Plaintiffs.

1.       The district court did not abuse its discretion by declining to give Plaintiffs’

proposed adverse inference jury instruction. See Jones v. Williams, 297 F.3d 930,

934–35 (9th Cir. 2002). Moreover, any error was harmless because the physical

features of the booth were not necessary to establish Plaintiffs’ claims and the

district court permitted Plaintiffs to argue everything in the proposed instruction at

trial.

2.       The district court did not abuse its discretion in excluding the testimony of

P.K. and J.B. We review evidentiary rulings for abuse of discretion. See Tennison

v. Circus Circus Enters., Inc., 244 F.3d 684, 688 (9th Cir. 2001). The district court

reasonably concluded that the proffered testimony of P.K. and J.B. was not

relevant to the material disputed fact of whether the booth had a locking

mechanism because neither witness would have testified to the presence or absence

of a lock on the booth’s door. Any error was not prejudicial because Plaintiffs

W.L. and A.L. both testified that they were locked in the booth without an adult


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present, so P.K. and J.B.’s testimony would have been cumulative. See Tennison,

244 F.3d at 688.

3.    The district court did not abuse its discretion by excluding evidence of past

allegations of misconduct involving Defendant Jerry Stein under Federal Rule of

Evidence 403. The evidence had limited probative value because the allegations

related to Stein’s use of the booth and the alleged incidents were remote in time,

occurred after the events in the case, or had been recanted. And any probative

value was substantially outweighed by the extremely inflammatory effect of

alleging that a school district or principal looked the other way in the face of

allegations that a teacher physically and sexually abused children.

4.    The district court did not err in dismissing Plaintiffs’ Monell claims against

the Longview School District under Rule 50(a). We review a district court’s Rule

50(b) ruling de novo. See Meehan v. Cty. of L.A., 856 F.2d 102, 106 (9th Cir.

1988). Plaintiffs did not establish that the alleged practice of sending students to

the CLC for disciplinary matters caused the Plaintiffs’ alleged constitutional

injuries. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996)

(Monell liability requires more than “but-for” causation). Plaintiffs also did not

establish liability for failure to adopt a policy. Furthermore, Plaintiffs did not show

deliberate indifference because there was no evidence that any policymaker was

aware of a pattern of placing general education students in the booth. See Jackson


                                           3
v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014). And Plaintiffs did not show

causation because all members of the CLC staff were aware that general education

students should not be placed in the booth despite the absence of a policy so

stating. Id.

5.    The district court did not err in dismissing Plaintiffs’ supervisory liability

and negligence claims against Defendant Patrick Kelley under Rule 50(a).

Plaintiffs did not establish that Kelley engaged in wrongful conduct. See Hansen

v. Black, 885 F.2d 642, 646 (9th Cir. 1989). The evidence likewise does not

support a prima facie claim of negligence because Plaintiffs did not establish

causation between any alleged breach of duty and Plaintiffs’ harms.

6.    The district court did not err in dismissing Plaintiffs’ outrage claims against

the Longview School District, Kelley, and Stein. Plaintiffs did not establish that

Kelley engaged in any wrongdoing. See Reid v. Pierce Cty., 961 P.2d 333, 337

(Wash. 1998). And the Longview School District’s alleged conduct—a custom of

sending general education students to the CLC for discipline—was not outrageous.

See Jackson v. Peoples Fed. Credit Union, 604 P.2d 1025 (Wash. Ct. App. 1979).

Reasonable minds could differ on whether Stein’s alleged conduct—placing

general education students in the isolation booth—was outrageous. But the district

court correctly dismissed the claim because Plaintiffs produced no evidence that

Stein acted with the requisite intent to cause, or reckless disregard for the


                                           4
possibility of causing, emotional distress. See Reid, 961 P.2d at 337.

7.    The district court did not abuse its discretion in declining to give Plaintiffs’

proposed substantial factor instruction because the evidence on damages could be

analyzed using but-for causation. United States v. Bello-Bahena, 411 F.3d 1083,

1089 (9th Cir. 2005); Daugert v. Pappas, 704 P.2d 600, 605–06 (Wash. 1985).

8.    The district court did not abuse its discretion by instructing the jury on the

definition of aversive intervention under the Washington Administrative Code

(“WAC”) because the jury instructions, as a whole, made it clear that the cited

portion of the WAC applied only to special education students. See White v. Ford

Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002).

9.    In contrast to our affirmance of the district court’s discretionary rulings

discussed above, we conclude that the district court abused its discretion in

denying Plaintiffs’ motion to re-tax costs because Plaintiffs have very limited

income, and the award of fees against Plaintiffs might chill future civil rights

litigation. See Ass’n of Mex.–Am. Educators, 231 F.3d 572, 592 (9th Cir. 2000);

Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1080 (9th Cir. 1999).

AFFIRMED in part and REVERSED in part. The parties shall bear their

own costs.




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