2:14-cv-01762 #18

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 1 of 13
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Honorable Thomas S. Zilly
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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE
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MICHAEL LEAL,
Plaintiff,
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v.
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No. 2:14-CV-01762-TSZ
EVERETT PUBLIC SCHOOLS, GARY

COHN, in his individual and official
capacities as Superintendent of Everett
Public Schools, CATHY WOODS, in her
individual and official capacities as Principal
of Cascade High School, LAURA
PHILLIPS, in her individual and official
capacities as Assistant Principal of Cascade
High School, ROBERT AGUILAR, in his
individual and official capacities as
Assistant Principal of Cascade High School,
and DOES 1 THRU 100,
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DEFENDANTS FIRST AMENDED

ANSWER TO PLAINTIFFS
COMPLAINT
Defendants.
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COME NOW Defendants Everett Public Schools, Gary Cohn, Cathy Woods, Laura
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Phillips, and Robert Aguilar, (collectively Defendants), by and through their counsel of
record, and herby answer Plaintiffs Complaint for Injunctive Relief, Declaratory Judgment and
Damages (Complaint), as follows:
I.
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1.
PARTIES
Defendants admit that Plaintiff is enrolled in Cascade High School (CHS), a public
DEFENDANTS FIRST AMENDED ANSWER TO

PLAINTIFFS COMPLAINT- 1
2:14-CV-01762-TSZ
PATTERS ON BU CHANAN
FOBES & LEI TCH, IN C., P.S.
2112 Third Avenue, Suite 500, Seattle WA 98121
Tel. 206.462.6700 Fax 206.462.6701
high school in Snohomish County, Washington, and admit that CHS is part of Everett Public
Schools (EPS). Defendants lack sufficient information to admit or deny all other averments
contained in 1 of the Complaint, and therefore, Defendants deny the same.
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28A.320.010. Defendants further admit that EPS currently employs named Defendants Gary
Cohn, Cathy Woods, Laura Phillips, and Robert Aguilar.
Complaint contains any averments other than those expressly admitted above, Defendants deny
the same.
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Defendants admit that EPS is a public school district and a body corporate under RCW
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Defendants admit the same.
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Defendants lack sufficient information at this time to admit or deny the averments
contained herein, and therefore, Defendants deny the same.

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Defendants lack sufficient information at this time to admit or deny the averments
contained herein, and therefore, Defendants deny the same.
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To the extent that 2 of the
II.
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JURISDICTION AND VENUE
This Court has jurisdiction over the subject matter of this action, as Plaintiffs
allegations concern subject matter under 42 U.S.C 1983 and the United States Constitution.
To the extent that 9 of the Complaint contains any averments other than those expressly
admitted above, Defendants deny the same.
10.
Defendants deny that this Court has supplemental jurisdiction pursuant to 28 U.S.C.
1367, as Plaintiff has not alleged any state law claims. Defendants admit the remaining
averments contained in 10 of the Complaint.
11.

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12.
Defendants admit that this Court is generally authorized to grant declaratory judgments
and injunctive relief under 28 U.S.C. 2201-02 and Fed. R. of Civ. P. No. 57 and 65 when
lawfully warranted. Defendants expressly deny that Plaintiff herein is entitled to such relief.
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under 42 U.S.C. 1988 when lawfully warranted. Defendants expressly deny that Plaintiff
herein is entitled to such relief.
Defendants admit that this Court is generally authorized to grant relief to plaintiffs
III.
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14.
FACTUAL ALLEGATIONS
Defendants admit that at the time of this filing, Plaintiff is currently enrolled as a senior
at CHS. Defendants lack sufficient information to admit or deny all remaining averments
contained in 14 of the Complaint, and therefore, Defendants deny the same.
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Defendants lack sufficient information to admit or deny all averments contained in 15
of the Complaint, and therefore, Defendants deny the same.

16.
Defendants admit that on or about September 3, 2014, Plaintiff distributed non-student
created materials, including a document entitled How to Know God on the CHS campus.
Defendants also admit that lunch periods are generally considered non-instructional time.
Defendants lack sufficient information to form a belief as to the remaining averments contained
in 16 of the Complaint, and therefore, Defendants deny the same.
17.
Defendants admit that on or about September 3, 2014, Defendants Woods and Phillips
met with Plaintiff in Woods office, to explain the relevant District policies and procedures to
Plaintiff regarding the type of material that may be distributed on campus and explain when
and where these materials may be handed out per District policy. Except as expressly admitted
above, Defendants deny that the averments contained in 17 of the Complaint reflect an
accurate and/or complete characterization of the interactions between Plaintiff and Defendants
Woods and Phillips on September 3, 2014.
18.
Defendants admit that on or about the evening of October 1, 2014, a Booster event was
held on the CHS campus, including a Bonfire, admit this event was open to CHS students, and
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admit that at this event, Plaintiff handed out materials to students and engaged in activities in
violation of District policies. As lack sufficient information to admit or deny all remaining
averments contained in 18 of the Complaint, and therefore, Defendants deny the same.
19.
paragraph, and therefore, Defendants deny the same.
20.
to the remaining averments in 20 of the Complaint, Defendants deny that the averments
contain accurate and/or complete characterizations of the interactions between Plaintiff and
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Defendants lack sufficient information in order to admit or deny the averments of this
Defendants admit that Defendant Woods told Plaintiff he needed to stop. With respect
Defendant Woods on or about October 1, 2014.

21.
Defendants admit that at the Bonfire on October 1, 2014, Plaintiff was instructed by
EPS employees to cease those activities in violation of District policies; admit that Plaintiff did
not cease such activities; admit that the police and Plaintiffs parents were called; and admit
that thereafter, Plaintiff stopped preaching and listened respectfully to administrators and
police. To the extent that 21 of the Complaint contains any averments other than those
expressly admitted above, Defendants deny the same.
22.
The averments in 22 of the Complaint reflect an inaccurate and/or incomplete
characterization of the interactions between Plaintiff and Defendants on or about October 1,

2014, and therefore, Defendants deny the same.
23.
Defendants admit that police arrived on or about October 1, 2014, and admit that the
police spoke to EPS administrators and Plaintiff. Defendants lack sufficient information in
order to admit or deny the remaining averments of this paragraph, and therefore, Defendants
deny the same.
24.
Defendants admit that Defendant Aguilar and Plaintiff met on October 2, 2014, for the
purpose of discussing Plaintiffs violation of District policy on or about October 1, 2014.

Defendants deny that the remaining averments contain accurate representations and/or
characterizations of the October 2, 2014 meeting.
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25.
October 2, 2014, suspending him from CHS for two (2) days and advising Plaintiff that he
should not be on any school district property or at any school district sponsored activity, or
he/she will be considered a trespasser, and that, the school will contact the police and seek
assistance in filing criminal trespass charges under RCW 9A.52.070-080, as is standard with
all suspensions. To the extent that 25 of the Complaint contains averments other than those
expressly admitted above, Defendants deny the same.
26.
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Defendants admit that Plaintiff received a Notice of Disciplinary Action on or about
Defendants deny that the averments of 26 of the Complaint reflect a complete
characterization of the October 2, 2014, Notice of Disciplinary Action, a document which

speaks for itself. Defendants otherwise admit the reason stated therein for the two (2) day
suspension was a partial basis for Plaintiffs suspension, and further admit that Plaintiff was
suspended also for his disruptive conduct and failure to comply with administrative requests.
To the extent that 26 of the Complaint contains averments other than those expressly admitted
above, Defendants deny the same.
27.
Defendants admit the Notice of Disciplinary Action dated October 2, 2014, references
EPS Board Policy No. 3240 and 3220P.

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29.
Defendants admit that on or about the evening of October 8, 2014, Plaintiff, in violation
of District Policy, distributed non-student created materials on campus during the schools
curriculum night and volleyball game, which was open to the public.
Defendants lack
sufficient information to form a belief as to the remaining averments contained in 29 of the

Complaint, and therefore, Defendants deny the same.
30.
Defendants deny that these averments of 30 of the Complaint contain an accurate
and/or complete characterization of the interactions between Plaintiff and Defendants on or

about October 8, 2014. Defendants admit that Defendant Woods instructed the Plaintiff that he
must follow the same District policies as required of all students. Defendants lack sufficient
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information to form a belief as to the remaining averments contained in 30 of the Complaint,
and therefore, Defendants deny the same.
31.
8, 2014, after he refused comply with District policy. Defendants deny that the remaining
averments of 31 of the Complaint contain accurate and/or complete characterizations of the
interactions between Plaintiff and Defendants on or about October 8, 2014.
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violation of District policy on or about October 9, 2014, and admit that Defendant Woods
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Defendants admit that Plaintiff was escorted partially off-campus on or about October
Defendants admit that Plaintiff continued to distribute non-student created material in
spoke with one student to determine whether the student wanted to speak with Plaintiff.
Defendants lack sufficient information to admit or deny all remaining averments contained in
32 of the Complaint, and therefore, Defendants deny the same.
33.
Defendants admit that Plaintiff was summoned to Defendant Aguilars office on
October 9, 2014, regarding Plaintiffs continued violations of District policy, specifically

distribution of non-student related materials during the school day. Defendants deny that the
remaining averments in 33 of the Complaint contain accurate and/or complete
characterizations of the interactions between Defendant Aguilar and Plaintiff on October 9,
2014.
34.
Defendants admit that Plaintiff received a Notice of Disciplinary Action on or about
October 9, 2014, suspending him from CHS for three (3) days and advising Plaintiff that he
should not be on any school district property or at any school district sponsored activity, or
he/she will be considered a trespasser, and that, the school will contact the police and seek
assistance in filing criminal trespass charges under RCW 9A.52.070-080, as is standard with
all suspensions. To the extent that 34 of the Complaint contains any averments other than
those expressly admitted above, Defendants deny the same.
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Defendants admit that Plaintiffs short-term suspension associated with the October 9,

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2014 Notice of Disciplinary Action began immediately on October 9, 2014, and admit that
Plaintiff could return to school on October 15, 2014.
37.
Defendants that continued violations and/or activities in violation of District policy may
necessitate additional disciplinary and/or corrective actions, including, and up to, expulsion, as
is standard District policy. Defendants further admit that per District policy, such disciplinary
and/or corrective actions may also result in conference with the Dean. To the extent that 37
of the Complaint contains any averments other than those expressly admitted above,
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Defendants admit that on or about October 9, 2014, Plaintiff was informed by
Defendants deny the same.

38.
Defendants admit that on or about October 10, 2014, Plaintiffs counsel sent a letter to
Defendant Cohn; admit that Exhibit C to Plaintiffs Complaint appears to be a true and correct
copy of the letter received by Defendant Cohn; and admit that the text excerpted and reflected
in 38 appears to be a true and correct excerpt of Plaintiffs October 10, 2014, letter. To the
extent that 38 of the Complaint contains any averments other than those expressly admitted
39.
40.
Defendants admit that on or about October 23, 2014, Plaintiff was open-air preaching in
a CHS hallway, and admit that Plaintiffs actions attracted a large gathering of students
blocking passage. Defendants deny that this was a non-instructional time and/or lunch break
for all students. With respect to the remaining averments contained in 40 of the Complaint,
Defendants lack sufficient information to admit or deny these averments, and therefore,
41.
Defendants admit that Exhibit D is a true and correct copy of the October 27, 2014,
letter from the Districts undersigned counsel responding to Plaintiffs October 10, 2014, letter.
To the extent that 41 of the Complaint contains any averment other than the express
admission above, Defendants deny the same.
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42.
pursuant to Procedure 3220P, the Principal has authority to monitor student verbal
expression. With respect to all other averments contained in this paragraph, Defendants deny
that the same are accurate and complete citations and/or characterizations of counsels October
27, 2014, letter, a document which speaks for itself.
43.
October 27, 2014, letter from undersigned counsel for Defendants, and Board Policy No. 3222
and 3222P. Except as expressly admitted above, Defendants lack sufficient information in
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Defendants admit that the October 27, 2014, letter from undersigned counsel states that
Defendants admit that this paragraph contains accurate excerpts as quoted from the
order to admit or deny all remaining averments contained in 43 of the Complaint, and
therefore, Defendants deny the same.
44.
Defendants admit that this paragraph contains an accurate excerpt from the October 27,
2014, letter from undersigned counsel for Defendants.
Defendants deny the remaining
averments contained therein.

45.
Defendants are lack sufficient information to admit or deny the first two sentences in
45 of the Complaint regarding the beliefs and motivations of Plaintiff, and therefore,
Defendants deny the same. Defendants also deny that pre-approval of a written speech is
required. The remaining factual allegations contain a legal conclusion and, therefore,
Defendants deny the same, and respectfully defer to the Court.
46.
Defendants admit that this paragraph contains accurate excerpts as quoted from the
October 27, 2014, letter from undersigned counsel for Defendants which speaks for itself. To
the extent that this paragraph contains any averments other than those expressly admitted
47.
48.
Defendants admit that Plaintiff, his mother and Defendant Aguilar met on or about
October 27, 2014. Defendants deny that direct contact between the parties without counsel
present is impermissible in any way. Defendants deny all remaining averments contained in
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48 of the Complaint.
49.
reviewed District policy with Plaintiff and his mother, talked with them about when and where
Plaintiff may engage in open-air preaching, and discussed what ways Plaintiff may state his
views without violating District policies. With respect to any averments other than those
expressly admitted above, Defendants deny these averments reflect an accurate and/or complete
characterization of Defendant Aguilars representations at the meeting on or about October 27,
2014.
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Defendants admit that at the October 27, 2014, meeting, Defendant Aguilar again
Defendants deny that the language quoted in 50 appears in the Behavior Plan, which
document speaks for itself. Defendants further deny that the language in the Behavior plan as
excerpted by Plaintiff, with ellipses, conveys an accurate summary of the language in the
Behavior Plan, which only requires certain materials for distribution by a student club to be
pre-approved.
51.
Defendants admit that on or about October 31, 2014, Plaintiff received a Notice of
Disciplinary Action and Short-Term Suspension as reflected in Exhibit G to Plaintiffs

Complaint, after Plaintiff violated District policy during class time. Defendants admit that
Plaintiff was suspended for five (5) days for Defiance/Insubordination (G4) failure to
comply with policies outlined in 2340, 2340P, 3240, and 3240P. Disruptive Behavior (F) not
engaging in learning activities. Defendants lack sufficient information to admit or deny all
other averments contained in 51 of the Complaint, and therefore, Defendants deny the same.
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This factual allegation calls for a legal conclusion, and therefore, Defendants deny the
same.
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57.
Defendants admit that Plaintiffs Complaint contains allegations concerning the
constitutionality of District Procedure 3222P. Defendants deny these allegations.
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constitutionality of District policies. Defendants deny these allegations.
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Defendants admit that Plaintiffs Complaint contains allegations concerning the
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CAUSE OF ACTION
61.
Defendants incorporate herein the answers to the Complaint 1-60, as stated above.
62.
Defendants admit that Defendants acted lawfully, and refer to the above answers to the
Complaint 1-60, with respect to all specific allegations.

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64.
Defendants admit that Plaintiff is seeking equitable relief against Defendants as pled in
the Complaint.
Defendants expressly deny Plaintiff is entitled to any such relief against
Defendants.
65.
Defendants admit that Plaintiff is seeking damages against Defendants as pled in the
Complaint.
Defendants expressly deny Plaintiff is entitled to any such relief against
Defendants.
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V.
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PLAINTIFFS PRAYER FOR RELIEF
Defendants deny that Plaintiff is entitled to any of the relief sought in the Prayer for
Relief.
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VI.
AFFIRMATIVE DEFENSES
BY WAY OF FURTHER ANSWER and without waiving any allegations previously

denied and without conceding they have the burden of proof as to any of the stated defenses,
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the Defendants state the following affirmative defenses:
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precluding him from seeking damages against these Defendants.
2.
Plaintiff fails to state a claim for which relief can be granted.
3.
Under the theories of comparative fault and contributory negligence, Defendant
is entitled to an allocation of fault under the determination of proportionate share of
entities/individuals causing damages if recovery is obtained. Plaintiffs injuries and/or
damages, if any, were proximately caused or contributed to by Plaintiffs own fault.
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Plaintiff failed to file a notice of tort claim, as required by Washington Law,
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Plaintiffs claim is moot.
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Plaintiff failed to exhaust administrative remedies.
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Plaintiff has failed to mitigate his damages.
7.
Any actions taken by Defendants, in relation to Plaintiff concerning the matters
alleged in the Complaint, were done in good faith and without any malice or intent to
deprive Plaintiff of his rights.
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Qualified immunity bars all claims against Defendants Cohn, Woods, Phillips,
and Aguilar.
9.
Plaintiff has failed to plead any facts to support any claims against Defendants
Cohn, Woods, Phillips, and Aguilar in their individual capacities.

10.
Defendants are entitled to an allocation of fault under the laws of the State of
Washington, specifically RCW 4.22.070.

11.
Defendants acted pursuant to lawful authority and direction.
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VII.
RESERVATION OF RIGHTS
Defendants reserve the right to amend its Answer to Plaintiffs Complaint for Injunctive
Relief, Declaratory Judgment and Damages, by way of adding additional affirmative defenses
and counterclaims, as may be warranted by discovery.
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VIII. PRAYER FOR RELIEF
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WHEREFORE, having fully answered Plaintiffs Complaint for Injunctive Relief,

Declaratory Judgment and Damages, Defendants pray for judgment as follows:
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prejudice;
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all costs and reasonable attorneys fees to the extent allowed by law; and,
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For judgment against the Plaintiff dismissing Plaintiffs claims with
That judgment be entered in favor of Defendants to include an award of
That the Court grant Defendants any further relief as it may deem proper,
just, and equitable.
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DATED this 16th day of December, 2014.

PATTERSON BUCHANAN
FOBES & LEITCH, INC., P.S.
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By: /s/ Sarah E. Heineman

Michael A. Patterson, WSBA 7976
Sarah E. Heineman, WSBA 33107
Of Attorneys for Defendants
2112 Third Avenue, Suite 500
Seattle, WA 98121
Telephone: (206) 462-6700
Fax: (206)462-6701
map@pattersonbuchanan.com
seh@pattersonbuchanan.com
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CERTIFICATE OF SERVICE
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I, Theresa Nixon, hereby declare that on this 16th day of December, 2014, I
electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which
will send notification of such filing to the following:
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ATTORNEY NAME & ADDRESS

Conrad Reynoldson
Pacific Justice Institute
4421 51ST AVENUE NE
SEATTLE, WA 98105
Conrad3445@gmail.com
METHOD OF DELIVERY
Electronic Mail
ABC Legal Messenger Service
Regular U.S. Mail
Other: _______________________
Kevin T. Snider
Matthew B. McReynolds
Pacific Justice Institute
9751 HORN ROAD, SUITE 115
SACRAMENTO, CA 95827
ksnider@pji.org
mattmcreynolds@pji.org
I certify under penalty of perjury, under the laws of the State of Washington, that the
foregoing is true and correct.
DATED this 16th day of December, 2014 at Seattle, Washington.
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/s/ Theresa Nixon
Theresa Nixon
Legal Assistant
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Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 1 of 13

UNITED STATES DISTRICT COURT

EVERETT PUBLIC SCHOOLS, GARY

DEFENDANTS FIRST AMENDED

DEFENDANTS FIRST AMENDED ANSWER TO

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 2 of 13

contained in 1 of the Complaint, and therefore, Defendants deny the same.

Cohn, Cathy Woods, Laura Phillips, and Robert Aguilar.

Defendants admit the same.

Defendants admit the same.

Defendants admit the same.

Defendants admit the same.

contained herein, and therefore, Defendants deny the same.

contained herein, and therefore, Defendants deny the same.

To the extent that 2 of the

JURISDICTION AND VENUE

Defendants admit the same.

DEFENDANTS FIRST AMENDED ANSWER TO

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 3 of 13

herein is entitled to such relief.

Defendants lack sufficient information to admit or deny all averments contained in 15

of the Complaint, and therefore, Defendants deny the same.

Defendants admit that on or about September 3, 2014, Plaintiff distributed non-student

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 4 of 13

paragraph, and therefore, Defendants deny the same.

Defendant Woods on or about October 1, 2014.

The averments in 22 of the Complaint reflect an inaccurate and/or incomplete

characterization of the interactions between Plaintiff and Defendants on or about October 1,

purpose of discussing Plaintiffs violation of District policy on or about October 1, 2014.

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 5 of 13

expressly admitted above, Defendants deny the same.

Defendants admit that Plaintiff received a Notice of Disciplinary Action on or about

Defendants deny that the averments of 26 of the Complaint reflect a complete

characterization of the October 2, 2014, Notice of Disciplinary Action, a document which

EPS Board Policy No. 3240 and 3220P.

Defendants admit the same.

sufficient information to form a belief as to the remaining averments contained in 29 of the

Defendants deny that these averments of 30 of the Complaint contain an accurate

and/or complete characterization of the interactions between Plaintiff and Defendants on or

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 6 of 13

information to form a belief as to the remaining averments contained in 30 of the Complaint,

and therefore, Defendants deny the same.

averments of 31 of the Complaint contain accurate and/or complete characterizations of the

interactions between Plaintiff and Defendants on or about October 8, 2014.

Defendants admit that Plaintiff continued to distribute non-student created material in

Defendants admit that Plaintiff was summoned to Defendant Aguilars office on

October 9, 2014, regarding Plaintiffs continued violations of District policy, specifically

Defendants admit that Plaintiff received a Notice of Disciplinary Action on or about

Defendants admit the same.

DEFENDANTS FIRST AMENDED ANSWER TO

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Plaintiff could return to school on October 15, 2014.

Defendants admit that on or about October 9, 2014, Plaintiff was informed by

Defendants deny the same.

Defendants admit the same.

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 8 of 13

27, 2014, letter, a document which speaks for itself.

2014, letter from undersigned counsel for Defendants.

Defendants deny the remaining

averments contained therein.

Defendants deny the same.

Case 2:14-cv-01762-TSZ Document 18 Filed 12/16/14 Page 9 of 13

characterization of Defendant Aguilars representations at the meeting on or about October 27,

Disciplinary Action and Short-Term Suspension as reflected in Exhibit G to Plaintiffs