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).*

Download PDF
1 2 3 4 5 6 Thomas K. Irvine (#006365) tirvine@polsinelli.com Cynthia R. Estrella (#017220) cestrella@polsinelli.com POLSINELLI SHUGHART PC CityScape One East Washington, Suite 1200 Phoenix, AZ 85004 Phone: (602) 650-2000 Fax: (602) 264-7033 Attorneys for Maricopa County, Arizona 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF ARIZONA 9 10 UNITED STATES OF AMERICA, Case No. 2:10-cv-01878-GMS Plaintiff, 11 12 13 14 15 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. 16 17 Defendant Maricopa County, Arizona (“Maricopa County”) hereby replies in support 18 of its Cross-Motion for Summary Judgment. Based on the uncontroverted material facts, 19 Maricopa County is entitled to summary judgment and to the following judicial findings as 20 a matter of law: (1) that Maricopa County has not violated its statutory and contractual 21 obligations set forth in the pre-award assurances, the assurances of continuing compliance 22 and Title VI; (2) that Plaintiff (“DOJ”) has not taken the steps necessary pursuant to Title 23 VI and its implementing regulations to make a finding of default as to Maricopa County; (3) 24 the federal grant monies awarded to Maricopa County, and grants for which Maricopa 25 County has applied, are not at risk of suspension or revocation as a result the alleged acts by 26 the Maricopa County Sheriff’s Office; and, (4) that the only relief available to DOJ in this 27 28 2790560.1 1 1 1 matter are discovery orders. 2 I. 3 In its First Amended Complaint [doc. 17] (herein, “FAC”), DOJ seeks declaratory 4 and injunctive relief “compelling the Defendants to provide access to all requested 5 documents, staff, and facilities.” Plaintiff’s Reply to Maricopa County’s Response to 6 Motion for Summary Judgment and Response to Cross-Motion for Summary Judgment 7 [doc. 47] (herein, “DOJ’s Response”) at 7. DOJ routinely fails to distinguish between the 8 Sheriff and Maricopa County. DOJ FAILS TO MEET ITS BURDEN 9 DOJ’s Response reads like a press release. DOJ admits that it initially requested 10 documents from the Sheriff in March 2009, and then dithered until August 2010 before 11 involving the “primary recipient,” Maricopa County. Id. DOJ’s request for relief is overly- 12 broad and erroneously conflates MCSO’s alleged non-compliance with DOJ’s requests with 13 Maricopa County’s status as a Title VI primary funding recipient. In order for DOJ to 14 prevail on its claims against Maricopa County, it must prove that Maricopa County failed to 15 permit DOJ access to information or facilities pertinent to DOJ’s underlying Title VI 16 investigation. See FAC at ¶13. Even accepting DOJ’s chronology as true, DOJ cannot 17 prove Title VI non-compliance by any non-MCSO Maricopa County entity. See Board of 18 Public Instruction of Taylor County, Fla. v. Finch, 414 F.2d 1068 (5th Cir. 1969). 19 Maricopa County’s underlying Response to Motion for Summary Judgment and 20 Cross-Motion for Summary Judgment [doc. 43] (herein, “Maricopa County’s Motion”) 21 challenged DOJ to “point to a single instance when Maricopa County has refused to 22 cooperate.” Id. at 7. DOJ’s Response cites no such instance; nor can it. Indeed, DOJ 23 admits that Maricopa County has offered to exercise its subpoena power pursuant to A.R.S. 24 § 11-218 to help resolve this matter, within days of Maricopa County receiving notice from 25 DOJ in August 2010 of the impasse with the Sheriff. Plaintiff’s Objections to Defendant 26 Maricopa County’s Statement of Facts in Support of Cross-Motion for Summary Judgment 27 28 1 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. 2790560.1 2 1 [doc. 49] (“herein, “DOJ’s Objections”) at Objection to ¶77. DOJ did not and has not 2 responded to Maricopa County’s offer to invoke this subpoena authority. Rather, DOJ 3 precipitously named Maricopa County in this case. 4 DOJ’s extolling of the Sheriff’s jail policymaking authority (DOJ’s Response at 5-6) 5 does nothing to advance its arguments. DOJ relies on Monell v. New York City Dept. Of 6 Social Servs., 436 U.S. 658 (1978). However, Monell stands for the proposition “that a 7 municipality cannot be held liable solely because it employs a tortfeasor—or, in other 8 words, a municipality cannot be held liable under § 1983 on a respondeat superior theory.” 9 Id. at 691. Monell and its progeny require a plaintiff seeking to impose liability on a 10 municipality “to identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” 11 Bd. of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997). It is not enough to identify 12 conduct properly attributable to the municipality. Id. at 404. Here, Maricopa County has 13 clearly stated its policy of compliance with Title VI and its willingness to assist DOJ to the 14 extent possible under Arizona law. Maricopa County’s prompt offer of its subpoena powers 15 in August 2010 proves that fact. DOJ fails to identify a Maricopa County “policy” or 16 “custom” that is impeding its investigation. 17 II. 18 In its Cross-Motion for Summary Judgment, Maricopa County acknowledges that 19 DOJ initiated an investigation. See Maricopa County’s Motion at 3. Maricopa County 20 further acknowledges that during the course of DOJ’s investigation, DOJ requested certain 21 documents and information from MCSO and its representatives. However, it is undisputed 22 that DOJ did not serve these requests properly (or otherwise) on Maricopa County. See 23 A.R.S. § 11-622(A) (“A person having a claim against a county shall present to the board of 24 supervisors of the county against which the demand is held an itemized claim executed by 25 the person under penalties of perjury, stating minutely what the claim is for, specifying each 26 item, the date and amount of each item and stating that the claim and each item of the claim 27 is justly due.”). See also, A.R.S. § 12-821 et seq. DOJ DID NOT SERVE PROPER NOTICE ON MARICOPA COUNTY 28 2790560.1 3 1 DOJ’s Response (at pgs. 3-4) references several discrete circumstances it argues 2 provided “notice” to Maricopa County that certain Title VI responsibilities were going 3 unfulfilled. The first circumstance DOJ claims provided notice to Maricopa County was in 4 March 2009 when Maricopa became aware of the underlying Title VI investigation. 5 However, the commencement of an investigation is obviously not notice of a problem with 6 achieving access to investigatory information. Next, DOJ feebly asserts that service of the 7 United States’ First Request for Documents and Information on the Maricopa County 8 Attorney’s Office (as MCSO’s legal counsel) constitutes notice to Maricopa County. 9 Again, a request for documents cannot be notice of a dispute or alleged default at some later 10 date. Also, as discussed above, this is plainly wrong. Arizona law provides that the Clerk 11 of the Board of Supervisors must be served with claims against Maricopa County; not the 12 County Attorney’s Office. Importantly, the timing is critical. DOJ is acutely aware that by 13 early 2009 the then Maricopa County Attorney, Andrew Thomas, in conjunction with and 14 representing the Sheriff, was filing lawsuits against Maricopa County and its Board of 15 Supervisors. 16 (complaint filed December 30, 2008 with Andrew Thomas and Joe Arpaio as plaintiffs) and 17 Arpaio v. Maricopa County Board of Supervisors, 225 Ariz. 358, 238 P.3d 626 (App. 2010) 18 (complaint filed February 7, 2009 with Andrew Thomas and Joe Arpaio as plaintiffs). It is 19 quite disingenuous for DOJ to suggest that providing something to Thomas involving the 20 Sheriff is proper notice to Maricopa County. See, Daughton v. Romley, 225 Ariz. 521, 241 P.3d 518 (App. 2010) 21 Lastly, DOJ refers to a Sheriff’s press conference in which the Sheriff voiced his 22 concern about the Title VI investigation. It is ironic that the Sheriff’s reported position at 23 his press conference (i.e., failure to cooperate with DOJ) is cited by DOJ for the dubious 24 legal proposition that the Sheriff’s press conference substitutes for proper notice to 25 Maricopa County of DOJ’s claims. DOJ appears to want to bind itself to a concept that can 26 be called “constructive notice by press conference.” The DOJ’s position is unsupported by 27 any legal authority of which undersigned counsel is aware. Moreover, the concept that 28 press conferences can provide legally recognized notice in a civil rights investigation should 2790560.1 4 1 be an anathema to DOJ. It also goes without saying that the huffing and puffing of a press 2 conference may be a tactic that one cannot presume to indicate the full range of the legal 3 situation. The press conference DOJ references, rather, provides absolute evidence of when 4 DOJ should have engaged the primary recipient in the discussions. DOJ’s choice to ignore 5 the primary recipient prolonged the matter; DOJ cannot now ignore its own failures. 6 Even still, in spite of DOJ’s failures with regard to notifying Maricopa County, 7 Maricopa County has offered “to assist in any way that it can to resolve the dispute that 8 resulted in this action being filed.” Maricopa County’s Motion at pg. 3 n. 1. Regrettably, 9 rather than work with Maricopa County, DOJ is pursuing a course of unnecessary and 10 expensive litigation against Maricopa County that stands only to give rise to acrimony and 11 accomplishes nothing as to Maricopa County. 12 Maricopa County accepts DOJ’s binding representation that “[t]he United States is 13 not seeking termination of funds in this proceeding….” DOJ’s Response at 7. However, 14 because the undisputed facts demonstrate that: 1. Maricopa County has not violated its 15 statutory and contractual obligations concerning Title VI compliance; and, 2. because DOJ 16 has failed to even take the steps necessary pursuant to Title VI to make a finding of default 17 as to Maricopa County (i.e., proper service of requests for information pursuant to A.R.S. 18 § 11-622(A)), it is appropriate for this Court to enter a judgment in conformance with these 19 undisputed facts. 20 IV. Conclusion: Maricopa County has Not Violated its Obligations. 21 Maricopa County agrees that it is required to cooperate in the DOJ investigation. 22 However, DOJ’s lawsuit against Maricopa County must not be allowed to continue based 23 on the undisputed factual record. Maricopa County has satisfied its obligations pursuant to, 24 inter alia, 28 C.F.R. § 42.106 (a), and will continue to do so. 25 encouraged by the recent efforts of DOJ and the Sheriff to produce documents, interview 26 staff and inmates and tour facilities. Maricopa County will continue to encourage and 27 facilitate the Sheriff and DOJ in this effort. 28 2790560.1 5 Maricopa County is 1 Based on the evidence presented, Maricopa County respectfully submits that the 2 Court should enter Summary Judgment in favor of Maricopa County finding that: (1) 3 Maricopa County has not violated its statutory and contractual obligations set forth in the 4 pre-award assurances, the assurances of continuing compliance and Title VI; (2) that DOJ 5 has not taken the steps necessary pursuant to Title VI and its implementing regulations to 6 make a finding of default as to Maricopa County; (3) the federal grant monies awarded to 7 Maricopa County, and grants for which Maricopa County has applied, are not at risk of 8 suspension or revocation as a result the alleged acts by the Maricopa County Sheriff’s 9 Office; and, (4) that the only relief available to DOJ in this matter are discovery orders. 2 10 A fundamental tenant of DOJs recent filings is that it is entitled to judgment against 11 the Sheriff, and Maricopa County, due to the alleged failures which occurred prior to the 12 filing of this action. 13 summary judgment as prayed for due to its having never violated Title VI. Based upon the same principle, Maricopa County is entitled to 14 Dated this 26th day of April, 2011. 15 POLSINELLI SHUGHART PC 16 17 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 18 19 20 21 22 23 24 25 26 27 28 2 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. 2790560.1 6 CERTIFICATE OF SERVICE 1 2 I hereby certify that on April 26, 2011 a true and correct copy of the foregoing was 3 filed with the Court and distributed electronically through the ECF system to all individuals 4 registered on ECF in this action: 5 Amin Aminfar: amin.aminfar@usdoj.gov 6 Roy L. Austin: roy.austin@usdoj.gov 7 Matthew Colangelo: matthew.colangelo@usdoj.gov 8 9 Peter S. Gray: peter.gray2@usdoj.gov 10 Avner Shapiro: avner.shapiro@usdoj.gov 11 Laurie A. Gelman: laurie.gelman@usdoj.gov 12 13 Michael M. Walker: Michael.Walker4@usdoj.gov 14 John T Masterson: jmasterson@jshfirm.com 15 Joseph John Popolzio: jpopolizio@jshfirm.com 16 William R. Jones, Jr.: Wjones@jshfirm.com 17 18 By: /s/ Donna Kekar 19 20 21 22 23 24 25 26 27 28 2790560.1 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?