Gregory v. Arizona Department of Child Support Enforcement et al

Filing 32

ORDER Defendants' motion to dismiss the compliant (Doc. 27 ) is granted in part and denied in part as set forth in this order. Defendants' motion for an order directing Plaintiff to cease any attempts to contact or communicate directly with State Defendants (Doc. 28 ) is granted as set forth in this order. Signed by Judge David G Campbell on 5/2/2012.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 12 13 ORDER Plaintiff, 10 11 No. CV11-0372-PHX-DGC Donald J. Gregory, v. Arizona Division of Child Support Enforcement, et al., Defendants. 14 15 Pro se Plaintiff Donald J. Gregory filed an amended complaint on May 10, 2011 16 against Arizona Assistant Attorney General Kathryn Harris and Arizona Division of 17 Child Support Enforcement Assistant Director Veronica Ragland, in their official and 18 individual capacities, and against Melanie Gregory in her individual capacity. Doc. 11. 19 Defendant Gregory filed a motion to dismiss (Doc. 15) which the Court granted without 20 prejudice on July 27, 2011. 21 Defendants”) filed a motion to dismiss on January 1, 2012. Doc. 27. The motion has 22 been fully briefed, and neither party has requested oral argument. Docs. 29, 30. State 23 Defendants also filed a motion for an order directing Plaintiff to cease attempts to contact 24 or communicate directly with Defendants (Doc. 28), and Plaintiff has failed to file a 25 timely response. For the reasons stated below, the Court will grant in part Defendants’ 26 motion to dismiss without prejudice and grant Defendants motion regarding direct 27 communications as set forth in this order. 28 Doc. 16. Defendants Ragland and Harris (“State 1 I. Background. 2 This action arises from a series of State Court orders and related child support 3 enforcement actions. On July 13, 2001, the Arizona Superior Court ordered Plaintiff to 4 make monthly payments to Melanie Gregory for the support of their children Victoria, 5 Erika, and Jennifer. Doc. 11, ¶¶ 1-2. The 2001 order stated that it would expire if not 6 reduced to a judgment three years from the time the youngest child emancipated. Id., ¶ 2. 7 The youngest child, Jennifer, left home in 2001, and had a child of her own on 8 September 17, 2003. Id. The State Court issued an order on July 23, 2003, finding that 9 Jennifer had emancipated when she became pregnant at 16 and eliminating Plaintiff’s 10 obligation to pay further child support. Id.; Doc. 27 at 2. Melanie Gregory continued to 11 seek and receive enforcement of Plaintiff’s child support obligations from the Arizona 12 Division of Child Support Enforcement (“ADCSE”), and Plaintiff requested a review and 13 a stop to his wage assignments. Doc. 11, ¶ 1. ADCSE made a determination in 2007 that 14 no current child support obligation existed, but made another determination in 2008 that 15 Plaintiff still owed child support. Id., ¶¶ 1-2. 16 Plaintiff filed an action in State Court in 2008 requesting that the court stop 17 ADCSE’s enforcement actions pursuant to the 2003 order and the fact that the 2001 order 18 had not been reduced to a judgment in the three years following the 2003 emancipation 19 order and had therefore expired. Doc. 11, ¶ 3. The State Court set aside the 2003 20 emancipation order because, under A.R.S. § 25-503, pregnancy is not a basis for 21 emancipation. Doc. 27 at 2; see also Doc. 11, ¶ 3. 22 Prior to this ruling, the Arizona legislature eliminated the requirement that a child 23 support order be reduced to a court judgment to be enforced and provided that each 24 payment is enforceable as a final judgment when it becomes due as a matter of law. 25 Doc. 11, ¶ 6; Doc. 27 at 5; see Ariz. Rev. S. § 25-503(I). Plaintiff’s youngest child, 26 Jennifer, reached the legal age of emancipation on December 6, 2004. Doc. 11, ¶ 2. 27 Defendant Ragland interpreted the new law to mean that child support arrears are 28 unenforceable only if three years had passed from the time of emancipation until -2- 1 September 21, 2006, when the new law went into effect. Id., ¶ 6. 2 Plaintiff’s amended complaint alleges that Defendants Harris and Ragland violated 3 unspecified state and federal laws by not granting a timely administrative review of the 4 ADCSE enforcement actions, thus depriving him of due process. Doc. 11, ¶ 1. Plaintiff 5 also alleges that ADCSE’s 2008 review and final determination relied on erroneous facts 6 and an expired court order, and that State Defendants fraudulently relied on the expired 7 order in enforcement actions. Id., ¶¶ 2-7. The complaint asserts six causes of action: (1) 8 violation of 42 U.S.C. § 1983; (2) violation of 42 U.S.C. § 1985; (3) common law 9 conspiracy; (4) fraud; (5) negligent infliction of emotional distress; and (6) intentional 10 infliction of emotional distress. Doc. 11 at 2. 11 II. Discussion. 12 State Defendants move to dismiss the complaint because neither the state nor its 13 officials are “persons” subject to suit under 42 U.S.C. § 1983; the complaint fails to state 14 a claim against State Defendants; Plaintiff’s state law claims are barred by Arizona’s one 15 year statute of limitations under A.R.S. § 12-821 and Plaintiff’s § 1983 claims are barred 16 by Arizona’s two year personal injury statute of limitations; and Plaintiff failed to comply 17 with state notice of claim provisions under A.R.S. § 12-821.01(A). Doc. 27 at 3-6. 18 As the Court previously stated, officials of state agencies cannot be sued in their 19 official capacities under § 1983. See Doc. 16 at 4, citing Will v. Mich. Dep’t of State 20 Police, 491 U.S. 58, 71 (1989). Plaintiff argues that the doctrine of Ex Parte Young 21 makes an exception to this rule where individual officers have acted to enforce an 22 unconstitutional state statute or proceeding. Doc. 29 at 2-3. 23 Ex Parte Young permits suits against state officials acting in their official capacity 24 where a claimant seeks only prospective relief. See Ex Parte Young, 209 U.S. 123 25 (1908); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997). Here, 26 Plaintiff seeks prospective relief ordering Defendants to close the case against him, lift all 27 levies, liens, and tax off-sets, and cure his credit profile. Doc. 11 at 8. The Court 28 previously found that Plaintiff had not alleged facts showing that the officials named in -3- 1 this suit have the power under state law to perform or not perform the acts requested. 2 Doc. 16 at 3-4. 3 The amended complaint states that Kathryn Harris represents ADCSE through the 4 Attorney General’s Office and that she has a duty to ensure that it complies with state and 5 federal laws, including that ADCSE review its files every three years or sooner. Doc. 11 6 at 3. It also states that Veronica Ragland is responsible for maintaining and updating the 7 records, files, and reviews of ADCSE. Id. The amended complaint further alleges that 8 State Defendants violated these duties by failing to ensure Plaintiff a timely 9 administrative review, thus depriving him of his due process rights, including the right to 10 be heard and to bring a defense at an orderly hearing. Doc. 11 at 3. 11 Defendants argue that Plaintiff does not plead a single fact about Ms. Ragland 12 other than to identify her by her official position in the caption of the complaint. But 13 Plaintiff has alleged specific, review-related duties and a failure to perform these duties 14 on the parts of both State Defendants leading to a violation of his due process rights. 15 These allegations, taken as true, are sufficient to state a § 1983 claim for prospective 16 relief. Under Ex Parte Young, “[t]he fact that a state officer, by virtue of his office, has 17 some connection with the enforcement of the act, is the important and material fact.” 209 18 U.S. 123 at 157. 19 Defendants also argue on the basis of Preschooler II v. Clark Cnty. Sch. Bd. of 20 Trs., 479 F.3d 1175, 1182 (9th Cir. 2007), that there is no “respondeat superior” liability 21 under Ex Parte Young and that even if the amended complaint alleges facts showing that 22 someone at ADCSE violated Plaintiff’s constitutional rights, it does not show that 23 Defendant Ragland directed or knew of the alleged violations and failed to prevent them. 24 Doc. 27 at 4. Unlike Preschooler II, however, Plaintiff has not alleged a failure to stop 25 known acts of abuse by a subordinate; rather Plaintiff has alleged that state Defendants 26 have failed to perform their own affirmative duties of ensuring ADCSE’s compliance 27 with required administrative review procedures. Defendants do not argue that State 28 Defendants did not have these affirmative duties; nor do they dispute whether State -4- 1 Defendants have authority by virtue of these duties to prospectively cancel liens and 2 restore Plaintiff’s credit record in the event that due process violations took place. The 3 Court will deny Defendants’ motion to dismiss Plaintiff’s § 1983 claims with respect to 4 Plaintiff’s right to a timely administrative review.1 5 The complaint also alleges that Defendant Ragland placed a child support lien on 6 his KIA “using a fraudulent court order.” Doc. 11, ¶ 5. Accepting that Defendant 7 Ragland may be liable under § 1983 with regard to this lien, Plaintiff must allege 8 sufficient facts upon which the Court could infer that the court order Defendant Raglan 9 relied on was invalid and that her attachment of the lien therefore violated due process. 10 As with the initial complaint, Plaintiff does not specify whether the court order 11 was wrongly decided – in which case Plaintiff’s challenge to the state court order in 12 federal court would likely be barred by Rooker-Feldman – or whether Defendant Ragland 13 falsified a properly-decided court order (see Doc. 16 at 2), and Plaintiff alleges 14 insufficient facts to support either claim. It appears that Plaintiff refers to the 2001 order 15 that Plaintiff claims was superseded in 2003 and nonetheless expired when not reduced to 16 a judgment. But the 2003 order was set aside in 2008, and the requirement that a child 17 support order be reduced to a judgment was eliminated in 2006. 18 It is possible that the lien was placed after the 2003 order and before the 2008 19 order and that it was for ongoing rather than past due amounts, making the order invalid 20 under the operative 2003 ruling at that time; the amended complaint, however, has not 21 stated when the lien was placed, what order it relied upon, or whether the collection was 22 23 24 25 26 27 1 With respect to Plaintiff’s claim that ADCSE’s September 2008 final determination was factually flawed, the Court agrees that Plaintiff has failed to allege any facts connecting State Defendants to that determination’s allegedly erroneous findings. The amended complaint alleges that the 2008 determination lists additional children in the support obligation from the 2001 court order, thus showing that State Defendants “used a False court order.” Doc. 11, ¶ 2. But Plaintiff has alleged no facts showing that State Defendants had an affirmative duty to verify the substance of the 2008 determination. Nor has Plaintiff alleged facts showing that either Defendant participated in this determination or knew of and failed to remedy its alleged errors. 28 -5- 1 for ongoing or past due amounts. Absent such factual allegations, the mere possibility of 2 misconduct is insufficient to state a claim. The complaint must plead “enough facts to 3 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 4 544, 570 (2007). This plausibility standard “is not akin to a ‘probability requirement,’ 5 but it asks for more than a sheer possibility that a defendant has acted unlawfully.” 6 Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Twombly, 550 U.S. at 556). “[W]here the 7 well-pleaded facts do not permit the court to infer more than the mere possibility of 8 misconduct, the complaint has alleged B but it has not ‘show[n]’ B ‘that the pleader is 9 entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Iqbal, 129 S. Ct. at 1950 10 (2009). 11 The complaint also alleges that Defendant Harris acted fraudulently when she 12 represented Defendants in the 2008 hearing because she knew that the 2001 order had 13 expired. Doc. 11, ¶ 3. Plaintiff does not allege that Defendant Harris made false 14 statements of fact or otherwise improperly influenced the court commissioner. Rather, 15 Plaintiff alleges that Defendant Harris had reason to know that the 2001 order had 16 expired because she argued a case in 2005 in which the Arizona Supreme Court found 17 that if a judgment was not obtained on a child support order within three years of 18 emancipation, the court order expired by operation of law. Id., Doc. 29 at 4. But the case 19 to which Plaintiff refers (State ex rel. Dep’t of Econ. Sec. v. Hayden, 115 P.3d 116 (Ariz. 20 2005)) predates the 2006 changes in Arizona law that eliminated the need to obtain a 21 judgment on a child support order and therefore does not show that Defendant Harris had 22 reason to believe that the 2001 order had expired and that enforcement actions based on 23 that order were improper. See Ariz. Rev. S. § 25-503(I). To the extent Plaintiff claims 24 that the 2008 State Court decision relied on a faulty legal interpretation or was 25 procedurally inadequate (see Doc. 11, ¶ 3), these allegations do not show that Defendant 26 Harris acted unconstitutionally, and Plaintiff could have challenged the appropriateness 27 of the State Court actions and ruling on appeal. 28 Plaintiff also alleges that Defendant Harris “is guilty of fraud by intentional -6- 1 deception” because she changed the wording used by the Federal Office of Child Support 2 Enforcement (“OCSE”) when, in response to OCSE’s request, she clarified the 3 applicability of the new law to orders that had not terminated prior to that law going into 4 effect. Doc. 11, ¶ 6. This allegation, however, is not plausible on the facts pled. Plaintiff 5 alleges that OSCE made a statement that “[in] cases prior to September 21, 2006 where 6 the youngest child had emancipated and three years have passed: If a final judgment on 7 arrears was not obtained, then the arrears cannot be collected[.]” Id. Defendant Harris’ 8 alleged explanation was that “[i]n cases where the youngest child did emancipate and 9 three years had passed prior to September 21, 2006 and no judgment was obtained, the 10 arrears are then considered unenforceable[.]” Id. Plaintiff alleges that changing the word 11 “have” to “had” constitutes intentional deception, but Plaintiff does not show how 12 Defendant Harris’ rewording misconstrues the meaning of OCSE’s statement or how 13 OCSE’s statement precludes Defendant Harris’ explanation. Moreover, this statement 14 was made in response to a query from Plaintiff to OCSE in October 2010, long after the 15 relevant court orders had been entered in this case, and Plaintiff does not show any 16 connection between this statement and the alleged unconstitutional enforcement actions. 17 The Court concludes that Plaintiff has alleged sufficient facts to support a § 1983 18 claim against State Defendants with respect to his right to a timely administrative review. 19 The amended complaint fails to allege sufficient facts, however, to support Plaintiff’s 20 additional § 1983 claims. Additionally, the complaint alleges no facts showing that the 21 State Defendants acted in concert or conspired together, and thus provides no basis to 22 support Plaintiff’s § 1985 or common law conspiracy claims. 23 Plaintiff’s fraud claims fail for lack of particularity. Federal Rule of Civil 24 Procedure 9(b) requires that a plaintiff “state with particularity the circumstances 25 constituting fraud or mistake.” As discussed above, Plaintiff has alleged generally that 26 the State Defendants were responsible for ADCSE’s enforcement actions and that 27 Defendant Ragland placed a lien on Plaintiff’s vehicle, but Plaintiff has failed to allege 28 the specific actions or circumstances in which State Defendants made false or fraudulent -7- 1 statements, falsified court orders, or otherwise acted to perpetrate a fraud or mistake. 2 “While statements of the time, place and nature of the alleged fraudulent activities are 3 sufficient, mere conclusory allegations of fraud are insufficient.” Moore v. Kayport 4 Package Exp., Inc., 885 F.2d 531, 540 (9th Cir. 1989). Plaintiff has also failed to make a 5 plausible claim that Defendant Harris acted fraudulently when she relied on a change in 6 Arizona law to assert that the relevant child support order had not expired in this case. 7 The complaint also fails to state a claim for intentional or negligent infliction of 8 emotional distress. Intentional infliction of emotional distress requires a showing of 9 extreme and outrageous conduct. See Ford v. Revlon Inc., 153 Ariz. 38, 42 (Ariz. 1987). 10 The facts alleged in the complaint are insufficient to meet this burden. Negligent 11 infliction of emotional distress requires a showing of physical injury or “substantial, 12 long-term emotional disturbances.” See Pierce v. Casas Adobes Baptist Church, 162 13 Ariz. 269, 272 (Ariz. 1989); Monaco v. HealthPartners of S. Arizona, 196 Ariz. 299, 303 14 (Ariz. Ct. App. 1999). Plaintiff makes only the conclusory statement that Defendants 15 have caused him emotional distress. Doc. 11, ¶ 7. Absent sufficient factual allegations to 16 back up Defendants’ misconduct and Plaintiff’s injury, merely alleging the elements of 17 the claim does not satisfy Plaintiff’s minimum pleading requirements. See Twombly, 127 18 S.Ct. at 1965 (“a formulistic recitation of the elements of a claim will not do” to state a 19 claim). 20 Because Plaintiff has alleged sufficient facts to support a § 1983 claim, the Court 21 will address Defendants’ argument that Plaintiff’s claims are nonetheless barred by 22 Arizona’s statutes of limitations and notice of claims requirements. Defendants 23 and Plaintiff does not disagree, that Plaintiff’s state law claims are subject to a one year 24 statute of limitations under A.R.S. § 12-821 and his § 1983 claims are subject to 25 Arizona’s two year personal injury statute of limitations. Doc. 27 at 5-6. Plaintiff 26 responds that the “continuing violation doctrine” applies, making his claims timely 27 because he has alleged at least one unlawful act in 2010. Doc. 29 at 3-4. Plaintiff refers 28 to Defendant Ragland’s alleged fraudulent misrepresentations in October 2010 and a lien -8- assert, 1 placed on his vehicle in June 2010. Id.2 2 Defendants argue on the basis of Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 3 1981), that these alleged unlawful acts are merely the “ill effects of the original 4 violation,” namely, the 2008 State Court ruling, and do not constitute continuing acts. 5 Doc. 30 at 2 (internal quotation marks omitted). But Ward dealt with a plaintiff’s attempt 6 to toll the statute of limitations on an employment discrimination claim throughout the 7 sixteen-month period of his unemployment absent further discriminatory acts by his 8 previous employer and found that no continuing violation applied. 650 F.2d at 1147. It 9 is not clear from Arizona law that the continuing violation doctrine would not apply here 10 where Plaintiff has attempted to state a claim for continued unlawful enforcement actions 11 on the part of State Defendants. Furthermore, Arizona’s notice of claim requirement 12 applies only to a request for damages. See Home Builders Ass’n of Cent. Arizona v. 13 Kard, 219 Ariz. 374, 381 (Ariz. Ct. App. 2008). It does not bar claims where, as here, 14 Plaintiff has requested injunctive and declaratory relief. 15 III. Defendants’ Motion for an Order Directing Plaintiff to Cease Contact. 16 The Court will grant Defendants’ motion for an order directing Plaintiff to cease 17 all efforts to contact State Defendants’ regarding this litigation and address all future 18 communications to their legal counsel. This order does not preclude Plaintiff from 19 contacting State Defendants in their official capacities to the extent that such contact is 20 necessary to resolve current or ongoing issues related to child support enforcement 21 unrelated to this litigation. 22 IT IS ORDERED: 23 1. 24 25 Defendants’ motion to dismiss the compliant (Doc. 27) is granted in part and denied in part as set forth in this order. 2. Defendants’ motion for an order directing Plaintiff to cease any attempts to 26 27 28 2 The complaint only alleges that Plaintiff discovered a lien on his KIA in 2010. As noted above, it does not allege facts showing when and upon what basis the lien was attached. -9- 1 contact or communicate directly with State Defendants (Doc. 28) is granted as set forth 2 in this order. 3 Dated this 2nd day of May, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

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