United States of America v. Maricopa, County of et al

Filing 56

*REPLY to Response to Motion re 43 MOTION for Summary Judgment, Reply in Support of its Cross-Motion for Summary Judgment filed by Maricopa, County of. (Estrella, Cynthia) *Modified on 4/27/2011, deleted 40 and ]18], (LSP).*

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Thomas K. Irvine (#006365)
[e-mail]
Cynthia R. Estrella (#017220)
[e-mail]
POLSINELLI SHUGHART PC
CityScape
One East Washington, Suite 1200
Phoenix, AZ 85004
Phone: [phone]
Fax: [phone]
Attorneys for Maricopa County, Arizona

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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UNITED STATES OF AMERICA,
Case No. 2:10-cv-01878-GMS
Plaintiff,

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DEFENDANT MARICOPA COUNTY’S
REPLY IN SUPPORT OF ITS CROSSMOTION FOR SUMMARY
JUDGMENT

vs.
MARICOPA COUNTY, ARIZONA;
MARICOPA COUNTY SHERIFF’S
OFFICE; and JOSEPH M. ARPAIO, in his
official capacity as Sheriff of Maricopa
County, Arizona,
Defendants.

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Defendant Maricopa County, Arizona (“Maricopa County”) hereby replies in support

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of its Cross-Motion for Summary Judgment. Based on the uncontroverted material facts,

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Maricopa County is entitled to summary judgment and to the following judicial findings as

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a matter of law: (1) that Maricopa County has not violated its statutory and contractual

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obligations set forth in the pre-award assurances, the assurances of continuing compliance

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and Title VI; (2) that Plaintiff (“DOJ”) has not taken the steps necessary pursuant to Title

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VI and its implementing regulations to make a finding of default as to Maricopa County; (3)

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the federal grant monies awarded to Maricopa County, and grants for which Maricopa

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County has applied, are not at risk of suspension or revocation as a result the alleged acts by

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the Maricopa County Sheriff’s Office; and, (4) that the only relief available to DOJ in this

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matter are discovery orders.

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I.

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In its First Amended Complaint [doc. 17] (herein, “FAC”), DOJ seeks declaratory

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and injunctive relief “compelling the Defendants to provide access to all requested

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documents, staff, and facilities.” Plaintiff’s Reply to Maricopa County’s Response to

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Motion for Summary Judgment and Response to Cross-Motion for Summary Judgment

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[doc. 47] (herein, “DOJ’s Response”) at 7. DOJ routinely fails to distinguish between the

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Sheriff and Maricopa County.

DOJ FAILS TO MEET ITS BURDEN

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DOJ’s Response reads like a press release. DOJ admits that it initially requested

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documents from the Sheriff in March 2009, and then dithered until August 2010 before

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involving the “primary recipient,” Maricopa County. Id. DOJ’s request for relief is overly-

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broad and erroneously conflates MCSO’s alleged non-compliance with DOJ’s requests with

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Maricopa County’s status as a Title VI primary funding recipient. In order for DOJ to

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prevail on its claims against Maricopa County, it must prove that Maricopa County failed to

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permit DOJ access to information or facilities pertinent to DOJ’s underlying Title VI

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investigation. See FAC at ¶13. Even accepting DOJ’s chronology as true, DOJ cannot

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prove Title VI non-compliance by any non-MCSO Maricopa County entity. See Board of

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Public Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068 (5th Cir. 1969).

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Maricopa County’s underlying Response to Motion for Summary Judgment and

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Cross-Motion for Summary Judgment [doc. 43] (herein, “Maricopa County’s Motion”)

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challenged DOJ to “point to a single instance when Maricopa County has refused to

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cooperate.” Id. at 7. DOJ’s Response cites no such instance; nor can it. Indeed, DOJ

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admits that Maricopa County has offered to exercise its subpoena power pursuant to A.R.S.

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§ 11-218 to help resolve this matter, within days of Maricopa County receiving notice from

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DOJ in August 2010 of the impasse with the Sheriff. Plaintiff’s Objections to Defendant

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Maricopa County’s Statement of Facts in Support of Cross-Motion for Summary Judgment

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As described below, DOJ admitted in its Response brief that the proposed findings
nos. 3 and 4 are appropriate in this matter. DOJ’s Response at pg. 7.
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[doc. 49] (“herein, “DOJ’s Objections”) at Objection to ¶77. DOJ did not and has not

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responded to Maricopa County’s offer to invoke this subpoena authority. Rather, DOJ

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precipitously named Maricopa County in this case.

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DOJ’s extolling of the Sheriff’s jail policymaking authority (DOJ’s Response at 5-6)

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does nothing to advance its arguments. DOJ relies on Monell v. New York City Dept. Of

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Social Servs., 436 U.S. 658 (1978). However, Monell stands for the proposition “that a

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municipality cannot be held liable solely because it employs a tortfeasor—or, in other

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words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.”

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Id. at 691. Monell and its progeny require a plaintiff seeking to impose liability on a

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municipality “to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”

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Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997). It is not enough to identify

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conduct properly attributable to the municipality. Id. at 404. Here, Maricopa County has

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clearly stated its policy of compliance with Title VI and its willingness to assist DOJ to the

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extent possible under Arizona law. Maricopa County’s prompt offer of its subpoena powers

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in August 2010 proves that fact. DOJ fails to identify a Maricopa County “policy” or

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“custom” that is impeding its investigation.

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II.

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In its Cross-Motion for Summary Judgment, Maricopa County acknowledges that

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DOJ initiated an investigation. See Maricopa County’s Motion at 3. Maricopa County

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further acknowledges that during the course of DOJ’s investigation, DOJ requested certain

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documents and information from MCSO and its representatives. However, it is undisputed

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that DOJ did not serve these requests properly (or otherwise) on Maricopa County. See

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A.R.S. § 11-622(A) (“A person having a claim against a county shall present to the board of

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supervisors of the county against which the demand is held an itemized claim executed by

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the person under penalties of perjury, stating minutely what the claim is for, specifying each

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item, the date and amount of each item and stating that the claim and each item of the claim

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is justly due.”). See also, A.R.S. § 12-821 et seq.

DOJ DID NOT SERVE PROPER NOTICE ON MARICOPA COUNTY

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DOJ’s Response (at pgs. 3-4) references several discrete circumstances it argues

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provided “notice” to Maricopa County that certain Title VI responsibilities were going

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unfulfilled. The first circumstance DOJ claims provided notice to Maricopa County was in

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March 2009 when Maricopa became aware of the underlying Title VI investigation.

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However, the commencement of an investigation is obviously not notice of a problem with

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achieving access to investigatory information. Next, DOJ feebly asserts that service of the

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United States’ First Request for Documents and Information on the Maricopa County

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Attorney’s Office (as MCSO’s legal counsel) constitutes notice to Maricopa County.

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Again, a request for documents cannot be notice of a dispute or alleged default at some later

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date. Also, as discussed above, this is plainly wrong. Arizona law provides that the Clerk

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of the Board of Supervisors must be served with claims against Maricopa County; not the

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County Attorney’s Office. Importantly, the timing is critical. DOJ is acutely aware that by

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early 2009 the then Maricopa County Attorney, Andrew Thomas, in conjunction with and

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representing the Sheriff, was filing lawsuits against Maricopa County and its Board of

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Supervisors.

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(complaint filed December 30, 2008 with Andrew Thomas and Joe Arpaio as plaintiffs) and

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Arpaio v. Maricopa County Board of Supervisors, 225 Ariz. 358, 238 P.3d 626 (App. 2010)

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(complaint filed February 7, 2009 with Andrew Thomas and Joe Arpaio as plaintiffs). It is

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quite disingenuous for DOJ to suggest that providing something to Thomas involving the

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Sheriff is proper notice to Maricopa County.

See, Daughton v. Romley, 225 Ariz. 521, 241 P.3d 518 (App. 2010)

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Lastly, DOJ refers to a Sheriff’s press conference in which the Sheriff voiced his

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concern about the Title VI investigation. It is ironic that the Sheriff’s reported position at

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his press conference (i.e., failure to cooperate with DOJ) is cited by DOJ for the dubious

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legal proposition that the Sheriff’s press conference substitutes for proper notice to

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Maricopa County of DOJ’s claims. DOJ appears to want to bind itself to a concept that can

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be called “constructive notice by press conference.” The DOJ’s position is unsupported by

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any legal authority of which undersigned counsel is aware. Moreover, the concept that

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press conferences can provide legally recognized notice in a civil rights investigation should
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be an anathema to DOJ. It also goes without saying that the huffing and puffing of a press

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conference may be a tactic that one cannot presume to indicate the full range of the legal

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situation. The press conference DOJ references, rather, provides absolute evidence of when

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DOJ should have engaged the primary recipient in the discussions. DOJ’s choice to ignore

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the primary recipient prolonged the matter; DOJ cannot now ignore its own failures.

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Even still, in spite of DOJ’s failures with regard to notifying Maricopa County,

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Maricopa County has offered “to assist in any way that it can to resolve the dispute that

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resulted in this action being filed.” Maricopa County’s Motion at pg. 3 n. 1. Regrettably,

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rather than work with Maricopa County, DOJ is pursuing a course of unnecessary and

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expensive litigation against Maricopa County that stands only to give rise to acrimony and

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accomplishes nothing as to Maricopa County.

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Maricopa County accepts DOJ’s binding representation that “[t]he United States is

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not seeking termination of funds in this proceeding….” DOJ’s Response at 7. However,

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because the undisputed facts demonstrate that: 1. Maricopa County has not violated its

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statutory and contractual obligations concerning Title VI compliance; and, 2. because DOJ

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has failed to even take the steps necessary pursuant to Title VI to make a finding of default

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as to Maricopa County (i.e., proper service of requests for information pursuant to A.R.S.

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§ 11-622(A)), it is appropriate for this Court to enter a judgment in conformance with these

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undisputed facts.

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IV.

Conclusion: Maricopa County has Not Violated its Obligations.

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Maricopa County agrees that it is required to cooperate in the DOJ investigation.

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However, DOJ’s lawsuit against Maricopa County must not be allowed to continue based

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on the undisputed factual record. Maricopa County has satisfied its obligations pursuant to,

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inter alia, 28 C.F.R. § 42.106 (a), and will continue to do so.

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encouraged by the recent efforts of DOJ and the Sheriff to produce documents, interview

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staff and inmates and tour facilities. Maricopa County will continue to encourage and

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facilitate the Sheriff and DOJ in this effort.

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Maricopa County is

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Based on the evidence presented, Maricopa County respectfully submits that the

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Court should enter Summary Judgment in favor of Maricopa County finding that: (1)

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Maricopa County has not violated its statutory and contractual obligations set forth in the

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pre-award assurances, the assurances of continuing compliance and Title VI; (2) that DOJ

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has not taken the steps necessary pursuant to Title VI and its implementing regulations to

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make a finding of default as to Maricopa County; (3) the federal grant monies awarded to

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Maricopa County, and grants for which Maricopa County has applied, are not at risk of

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suspension or revocation as a result the alleged acts by the Maricopa County Sheriff’s

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Office; and, (4) that the only relief available to DOJ in this matter are discovery orders.

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A fundamental tenant of DOJs recent filings is that it is entitled to judgment against

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the Sheriff, and Maricopa County, due to the alleged failures which occurred prior to the

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filing of this action.

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summary judgment as prayed for due to its having never violated Title VI.

Based upon the same principle, Maricopa County is entitled to

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Dated this 26th day of April, 2011.

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POLSINELLI SHUGHART PC

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By: /s/ Cynthia R. Estrella
Thomas K. Irvine
Cynthia R. Estrella
CityScape
One East Washington, Suite 1200
Phoenix, AZ 85004
Attorneys for Maricopa County, Arizona

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Notwithstanding Maricopa County’s position concerning its compliance with Title
VI, DOJ admitted that proposed findings nos. 3 and 4 are appropriate in this matter. DOJ’s
Response at pg. 7.
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CERTIFICATE OF SERVICE

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I hereby certify that on April 26, 2011 a true and correct copy of the foregoing was

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filed with the Court and distributed electronically through the ECF system to all individuals

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registered on ECF in this action:

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Amin Aminfar: [e-mail]

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Roy L. Austin: [e-mail]

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Matthew Colangelo: [e-mail]

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Peter S. Gray: [e-mail]

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Avner Shapiro: [e-mail]

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Laurie A. Gelman: [e-mail]

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Michael M. Walker: [e-mail]

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John T Masterson: [e-mail]

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Joseph John Popolzio: [e-mail]

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William R. Jones, Jr.: [e-mail]

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By: /s/ Donna Kekar
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