Smalley v. Contino et al

Filing 17

ORDER granting in part and denying in part 10 Motion to Dismiss for Failure to State a Claim; denying 10 Motion to Strike. Signed by Judge David G Campbell on 3/7/2013.(NVO)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Blake Smalley,

No. CV12-2524-PHX-DGC
Plaintiff,

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ORDER

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v.

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Officer C. Contino, in his individual
capacity, “Unknown Officer #1,” in his
individual capacity, Joseph M. Arpaio, in
his individual capacity as sheriff of
Maricopa County, Maricopa Couty
Sheriff’s Office, and Maricopa County,

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Defendants.

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Defendants filed a motion to dismiss and motion to strike. Doc. 10. The motion is

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fully briefed. No party has requested oral argument. For the reasons stated below, the

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Court will grant the motion to dismiss in part and deny the motion to strike.

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I.

Background.

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On November 26, 2012, Plaintiff Blake Smalley, who is represented by counsel,

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filed a complaint against Maricopa County, The Maricopa County Sheriff’s Office

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(“MCSO”), Sheriff Arpaio in his individual capacity, Deputy C. Contino in his individual

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capacity, and Unknown Officer #1 (“Unknown Deputy”) in his individual capacity.

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Doc. 1. The complaint alleges that on September 22, 2012, MCSO deputies, acting under

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color of state law, unlawfully arrested Plaintiff, an African American male, in Cave

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Creek, Arizona. Doc. 1 at 5-9. According to the Plaintiff’s complaint, Unknown Deputy

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and Deputy Contino approached him at a convenience store where he was seeking

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assistance after his car ran out of gas. Id. at 5. Plaintiff’s car was not near the store

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during the encounter. Id. Deputy Contino questioned Plaintiff about the location of his

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car, then conducted a search of his person. Id. at 5-6. During the search, Unknown

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Deputy was “yelling and screaming at the plaintiff, telling him that it was part of the

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officers’ jobs to ‘keep pieces of shit like you off the street.’” Id. at 6. Deputy Contino

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then handcuffed Plaintiff and, with Unknown Deputy, assaulted Plaintiff by throwing him

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to the ground and then against a patrol car. Id. According to Plaintiff, Unknown Deputy

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yelled that “people like him” did not belong in the area. Id. Plaintiff believes the

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statement referred to him being an African American in a predominantly Caucasian

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neighborhood.

Id.

Plaintiff was arrested and charged with resisting arrest and

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maintaining an open container of alcohol in his car.

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transported to a detention facility and held for 15 hours. Id. Plaintiff contends that he

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was never formally charged or convicted of any crime in relation to the arrest. Id. at 8.

Id. at 7.

Plaintiff was then

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As a result of Plaintiff’s alleged unlawful arrest, he claims to have suffered

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injuries and damages in violation of his Fourth and Fourteenth Amendment constitutional

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rights, and 42 U.S.C. § 1983. Doc. 1. at 9.

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II.

Legal Standard.

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When analyzing a complaint for failure to state a claim for relief under Rule

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12(b)(6), the well-pled factual allegations are taken as true and construed in the light

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most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th

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Cir. 2009) (citation omitted). Legal conclusions couched as factual allegations are not

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entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and

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therefore are insufficient to defeat a motion to dismiss for failure to state a claim. In re

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Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) (citation omitted). To avoid a

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Rule 12(b)(6) dismissal, the complaint must plead enough facts to state a claim to relief

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that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This

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plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than

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a sheer possibility that a defendant has acted unlawfully.”

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Iqbal, 556 U.S. at 678

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(quoting Twombly, 550 U.S. at 556). “[W]here the well-pleaded facts do not permit the

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court to infer more than the mere possibility of misconduct, the complaint has alleged B

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but it has not ‘show[n]’ B ‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed.

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R. Civ. P. 8(a)(2)).

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III.

Analysis.

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A.

Plaintiff’s Standing.

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Defendants allege Plaintiff has no standing to bring this suit because he has not

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proven that he suffered a specific injury, nor shown an affirmative link between an injury

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and the conduct of any Defendant. Doc. 10 at 7, Doc. 16 at 9. To satisfy Article III

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standing, Plaintiff must show (1) he has suffered an “injury in fact” that is concrete and

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particularized and actual or imminent, not conjectural or hypothetical; (2) the injury is

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fairly traceable to the challenged action of Defendants; and (3) it is likely, as opposed to

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merely speculative, that the injury will be redressed by a favorable decision. Braunstein

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v. Arizona Dept. of Transp., 683 F.3d 1177, 1184 (9th Cir. 2012) (quoting Bernhardt v.

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County. of L.A., 279 F.3d 862, 868–69 (9th Cir. 2002)). Plaintiff bears the burden of

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establishing these elements. Although general allegations of injury can suffice at the

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pleading stage, a plaintiff must set forth “specific facts” to survive a motion for summary

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judgment based on lack of standing. Id. (quoting Lujan v. Defenders of Wildlife, 504

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U.S. 555, 561 (1992)).

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Plaintiff alleges that he suffered injuries due to excessive force from Unknown

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Deputy and Deputy Contino during his arrest. Doc. 1 at 9. Plaintiff also alleges that he

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was detained for 15 hours as a direct result of the arrest. Doc. 1 at 8. Plaintiff alleges

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that these injuries were a direct result of the actions or policies of Defendants in this case,

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and those allegations are sufficient to establish standing at this pleading stage.

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B.

Unknown Deputy and Deputy Contino.

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Count one of Plaintiff’s complaint alleges that he is entitled to damages from

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Unknown Deputy and Deputy Contino under 42 U.S.C.§ 1983 for violation his Fourth

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and Fourteenth Amendment constitutional rights. Doc. 1 at 9-10.

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To prevail in a § 1983 claim, a plaintiff must show that (1) acts by the defendants

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(2) under color of state law (3) deprived him of federal rights, privileges or immunities

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and (4) caused him damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163–64 (9th

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Cir. 2005) (quoting Shoshone–Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d

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1278, 1284 (9th Cir.1994)). “Section 1983 ‘is not itself a source of substantive rights,’

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but merely provides ‘a method for vindicating federal rights elsewhere conferred.’”

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Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137,

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144, n. 3 (1979)). It is well settled that § 1983 imposes liability for violations of rights

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protected by the Constitution, not for violations of duties of care arising out of tort law.

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Johnson v. Barker, 799 F.2d 1396, 1399 (9th Cir.1986); Baker, 443 U.S. at 146. Mere

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negligence is not sufficient to support a § 1983 claim. Daniels v. Williams, 474 U.S. 327,

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330–331 (1986).

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Plaintiff has sufficiently pled a § 1983 claim against the deputies in this case.

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Plaintiff alleges that Unknown Deputy and Deputy Contino, acting under the color of

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state law, racially discriminated against him and violated his right to be free from

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unreasonable searches and seizures. Doc. 1 at 9. Plaintiff also alleges that they used

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excessive, unreasonable, and unjustified force during his arrest. Id. Defendants do not

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specifically refute any of Plaintiff’s allegations with regard to Unknown Deputy and

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Deputy Contino in their motion to dismiss. Because the Court must accept Plaintiff’s

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allegations as true at this point in the proceedings, Defendants’ motion to dismiss with

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regard to Unknown Deputy and Deputy Contino will be denied. See Lockyer, 568 F.3d at

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1067.

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C.

MCSO.

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“Governmental entities have no inherent power and possess only those powers and

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duties delegated to them by their enabling statutes. Thus, a governmental entity may be

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sued only if the legislature has so provided.” Braillard v. Maricopa County, 232 P.3d

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1263, 1269 (Ariz. Ct. App. 2010) (citations omitted). “Although A.R.S. § 11-201(A)(1)

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provides that counties have the power to sue and be sued through their boards of

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supervisors, no Arizona statute confers such power on MCSO as a separate legal entity.”

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Id. Plaintiff, nonetheless, claims MCSO is a proper defendant, citing Maricopa County

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Sheriff’s Office v. Greer, 1 CA-CV 09-0255, 2010 WL 1779349 (Ariz. Ct. App. 2010).

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That decision was issued prior to Braillard, which resolved the issue of MCSO’s non-

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jural status.

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MCSO is a non-jural entity and lacks capacity to be sued. Accordingly, all claims
asserted against MCSO will be dismissed with prejudice.

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D.

Sheriff Arpaio.

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Plaintiff alleges that Sheriff Arpaio is responsible for Plaintiff’s injuries in his

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individual capacity under direct supervisor liability. Doc. 1 at 10, Doc. 15 at 11. In the

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Ninth Circuit, a defendant may be held liable as a supervisor under § 1983 “if there exists

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either (1) his or her personal involvement in the constitutional deprivation, or (2) a

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sufficient causal connection between the supervisor’s wrongful conduct and the

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constitutional violation.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011), cert.

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denied, 132 S. Ct. 2101 (2012) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th

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Cir.1989)). “[A] plaintiff must show the supervisor breached a duty to plaintiff which

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was the proximate cause of the injury. The law clearly allows actions against supervisors

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under section 1983 as long as a sufficient causal connection is present and the plaintiff

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was deprived under color of law of a federally secured right.” Id. (quoting Redman v.

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County of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991) (internal quotation marks

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omitted)).

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The requisite causal connection can be established by setting in motion a series of

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acts by others, or by knowingly refusing to terminate a series of acts by others, which the

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supervisor knew or reasonably should have known would cause others to inflict a

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constitutional injury. Id. (internal citation and quotation marks omitted). “A supervisor

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can be liable in his individual capacity for his own culpable action or inaction in the

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training, supervision, or control of his subordinates; for his acquiescence in the

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constitutional deprivation; or for conduct that showed a reckless or callous indifference to

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the rights of others.” Id. (quoting Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th

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Cir.1998)).

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Plaintiff claims that Sheriff Arpaio has a policy “of acquiescence in letting

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subordinates violate federally secured constitutional rights by failing to follow proper

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police procedures as required by . . . the United States Constitution.” Doc. 1 at 10.

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Specifically, Plaintiff contends and individually addresses claims that Arpaio promotes

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“policies,

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discriminatory policing, as demonstrated by inadequate policies, ineffective training,

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virtually non-existent accountability measures, poor supervision, scant data collection

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measures, distorted enforcement priorities, an ineffective complaint and disciplinary

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system, and dramatic departures from proper law enforcement procedures.” Id. Plaintiff

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claims that Sheriff Arpaio is aware that his office’s deficiencies create a risk of

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unconstitutional or discriminatory policing, yet fails to remedy the situation. Doc. 1 at

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10-13. Plaintiff further alleges that because of the Sheriff’s policies, Unknown Deputy

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and Deputy Contino believed their actions against Plaintiff would not be monitored or

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investigated and, indeed, would be tolerated. Doc. 1 at 13.

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customs,

practices,

and

procedures

that

allow

unconstitutional

or

Plaintiff has met his pleading burden under relevant Ninth Circuit law.
Defendant’s motion to dismiss Sheriff Arpaio will be denied.

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E.

Maricopa County.

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Plaintiff argues that the County is liable for constitutional violations of MCSO

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deputies because they occurred as a result of the policies, practices, and customs

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promulgated and ratified by Sheriff Arpaio, and because the County failed to remedy

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allegations of misconduct within MCSO. Doc. 1 at 14.

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Municipalities and other local government units are among those persons to whom

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§ 1983 applies. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978). A “[c]ounty is

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liable only for the actions of ‘its lawmakers or by those whose edicts or acts may fairly be

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said to represent official policy.’” Cortez v. County of L.A., 294 F.3d 1186, 1189 (9th

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Cir. 2002) (quoting Monell, 436 U.S. at 694). “To hold a local government liable for an

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official’s conduct, a plaintiff must first establish that the official (1) had final

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policymaking authority ‘concerning the action alleged to have caused the particular

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constitutional or statutory violation at issue’ and (2) was the policymaker for the local

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governing body for the purposes of the particular act.” Id. (quoting Weiner v. San Diego

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County, 210 F.3d 1025, 1028 (9th Cir. 2000)). “Whether a particular official has ‘final

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policy making authority’ is a question of state law.” Lytle v. Carl, 382 F.3d 978, 982 (9th

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Cir. 2004) (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)).

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“It is well settled that ‘Sheriff Arpaio is a final policymaker for Maricopa County

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in the context of criminal law enforcement.’” Mora v. Arpaio, CV-09-1719-PHX-DGC,

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2011 WL 1562443 at *7 (D. Ariz. 2011) (quoting Lovejoy v. Arpaio, CV09-1912-PHX-

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NVW, 2010 WL 466010 at *12 (D. Ariz. 2010)). The Sheriff’s authority is statutorily

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prescribed and vested in the State Constitution. See, Ariz. Const. art. XII, §§ 3, 4. A.R.S.

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§ 11-441 empowers the Sheriff, among other things, to preserve the peace and make

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arrests of persons committing crimes. In his official capacity, the Sheriff’s acts “surely

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represent an act of official government ‘policy’” of Maricopa County. Lovejoy, 2010 WL

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466010, at * 13 (citations omitted). Indeed, there “may be no ‘clearer case of county

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liability’ than for the policies of a sheriff charged by law with responsibility for a

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county’s [law enforcement].” Flanders v. Maricopa County, 54 P.3d 837, 847 (Ariz. Ct.

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App. 2002) (citation omitted).

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Under Monell, therefore, Maricopa County is subject to § 1983 liability for the

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Sheriff’s policies, customs, and practices if they deprived Plaintiff of his constitutional

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rights.

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violations committed in his official capacity, the County is liable as a matter of law.”);

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Martin v. Arpaio, No. CV 06–2423–PHX–DGC (DKD), 2006 WL 3313950, at *2 (D.

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Ariz. 2006) (“Regarding Arpaio in his official capacity, a suit against him officially is

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equivalent to a suit brought against . . . Maricopa County”) (citations omitted); see also

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Cortez v. County of L.A., 294 F.3d 1186, 1188–92 (9th Cir. 2001) (county subject to

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§ 1983 liability where the sheriff acted as an official for the county); Pembaur v. City of

See id.

(“Because the judgment against the Sheriff was for constitutional

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Cincinnati, 475 U.S. 469, 483 n. 12 (1986) (noting that while the sheriff’s employment

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decisions would not result in municipal liability where employment policy was set by the

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county board, “decisions with respect to law enforcement practices, over which the

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[s]heriff is the official policymaker, would give rise to municipal liability”) (emphasis in

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original).

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It is undisputed that Deputy Contino and Unknown Deputy were engaged in

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official law enforcement duties at the time of Plaintiff’s arrest. Doc. 10 at 6. Plaintiff

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alleges that his arrest and the related violations of his constitutional rights were a direct

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result of the Sheriff’s longstanding policies, customs, practices, and procedures. Doc. 1

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at 14. Plaintiff’s factual allegations plausibly state a claim against the County.

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F.

Motion to Strike.

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Defendants bring a motion to strike paragraphs 58-61 of Plaintiff’s complaint.

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Doc. 10 at 8-9. The Court “may strike from a pleading an insufficient defense or any

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redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f).

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Defendants claim paragraphs 58-61 “consist of pure political commentary” and

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must be stricken as immaterial and impertinent. Doc. 10 at 8-9. The Court disagrees.

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Plaintiff has alleged his constitutional rights were violated by MCSO deputies who were

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empowered to act by the Sheriff’s policies of encouraging, or at least condoning, racial

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discrimination in law enforcement. Plaintiff alleges both the County and the Sheriff were

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aware of institutional deficiencies in MCSO that could lead to such racially motivated

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policing, but failed to take corrective action. Paragraphs 58-61 of Plaintiff’s complaint

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point to factual evidence that the United States Department of Justice has recently

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attempted to engage the Sheriff regarding constitutional violations of his deputies.

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Doc. 1 at 12-13. The Court cannot conclude that such allegations are immaterial or

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impertinent to the Plaintiff’s claim that his own constitutional rights were violated by

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MCSO deputies. Defendants’ motion to strike will be denied.

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IT IS ORDERED:
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Defendants’ motion to dismiss (Doc. 10) is granted in part and

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denied in part as set forth above.

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Defendants’ motion to strike (Doc. 10) is denied.

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Dated this 7th day of March, 2013.

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