Newman v. Phoenix, City of et al

Filing 45

ORDER granting Defendants' 28 Motion to Dismiss. The only claim remaining is the § 1983 claim against officers Aguirre and Daley in their individual capacities. Signed by Senior Judge Frederick J Martone on 5/8/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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City of Phoenix, body politic in the State)
of Arizona; Travis Aguirre, a policeman)
for the City of Phoenix Police Department;)
Anthony Daley, a policeman for the City)
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of Phoenix Police Department,
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Defendants.
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Traris Newman,

No. CV-12-00944-PHX-FJM
ORDER

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We have before us defendants’ partial motion to dismiss (doc. 28), plaintiff’s response
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(doc. 30), and defendants’ reply (doc. 32).
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Count one of plaintiff's second amended complaint asserts that defendants violated
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his Fourth and Fourteenth Amendment rights pursuant to 42 U.S.C. § 1983. Plaintiff alleges
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his constitutional rights were violated because the City of Phoenix (“the City”) failed to
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properly train and supervise police officers Travis Aguirre and Anthony Daley.
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A city may not be held liable for the acts of its officers under § 1983 unless it "had
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a deliberate policy, custom, or practice that was the moving force behind the constitutional
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violation.” AE ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012)
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(citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L.Ed.2d
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611 (1978)). Bare allegations concerning “some unidentified government policy or custom”

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are no longer sufficient. Id. at 637 (citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,

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173 L.Ed.2d 868 (2009)). Here, the complaint is devoid of any allegations regarding a

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specific government policy, practice, or custom that was the "moving force" behind the

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alleged constitutional violations. Plaintiff’s broad assertion that the City “failed to properly

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train and supervise” the defendant officers is a conclusory allegation that fails to satisfy

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Iqbal. Therefore, the City may not be held liable for the defendant officers’ alleged

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violations.

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A city’s failure to train employees regarding their legal duty to avoid violating

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citizens' rights may rise to the level of a “policy or custom” that is actionable under § 1983

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only when it amounts to deliberate indifference. Connick v. Thompson, ––– U.S. ––––, 131

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S. Ct. 1350, 1359, 179 L.Ed.2d 417 (2011). Demonstrating deliberate indifference requires

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a showing that the city had “notice that a course of training is deficient in a particular

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respect,” because without such notice a city “can hardly be said to have deliberately chosen

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a training program that will cause violations of constitutional rights.” Id. at ––––, 131 S. Ct.

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at 1360. Plaintiff’s complaint does not contain any facts showing that the City had notice

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that its training or lack thereof could cause constitutional violations. In his response, plaintiff

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argues that the City must have had an established practice of ignoring police officers’

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constitutional violations because if the City had properly supervised the officers, the

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violations would not have occurred. But plaintiff cannot demonstrate the existence of a

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“policy or custom based solely on a single occurrence of unconstitutional action by a non-

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policymaking employee.” McDade v. West, 223 F.3d 1135, 1141 (9th Cir. 2000). Instead,

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plaintiff must show that unconstitutional actions resulted from a “permanent and well settled”

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practice. Id. Here, plaintiff’s allegations concern one incident which does not itself establish

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that the City had a “permanent and well settled” practice of discrimination. Therefore, we

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dismiss plaintiff’s § 1983 claim against the City.

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Because an action against a municipal officer in his official capacity is the functional

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equivalent of a direct action against a municipality, we also dismiss the §1983 claim against
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the police officer defendants in their official capacities. See Stevens v. Mohave County, 2006

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WL 2772635, *1 (2006).

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IT IS ORDERED GRANTING defendants’ motion to dismiss (doc. 28). The only

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claim remaining is the § 1983 claim against officers Aguirre and Daley in their individual

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capacities.

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DATED this 8th day of May, 2013.

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