Grevan et al v. Arpaio et al

Filing 13

ORDER denying 9 Motion to Dismiss for Failure to State a Claim. Signed by Judge David G Campbell on 12/18/2013.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Josephine Grevan, et al.,
Plaintiffs,

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No. CV-13-01799-PHX-DGC
ORDER

v.
Sheriff Joseph Arpaio, et al.,
Defendants.

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Defendants Sheriff Joseph Arpaio and his wife, Ava Arpaio (collectively, the

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“Arpaios”), have filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules

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of Civil Procedure. Doc. 9. The motion is fully briefed and no party has requested oral

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argument. For the reasons that follow, the Court will deny the motion.

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I.

Background.

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Plaintiffs are the surviving family members of Tracy Lynn Johnson and the

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Special Administrator of her estate. Doc. 1-1, ¶¶ 5-9. Ms. Johnson was arrested on

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August 6, 2012, on suspicion of theft. Id., ¶ 27. She was taken to Maricopa County’s

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intake facility. Id., ¶ 28. Plaintiffs allege that Johnson told detention personnel during

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intake that she was withdrawing from drugs. Id., ¶ 33. Defendants allege that Johnson

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“denied all of the screening questions,” including denying that she was suffering from

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drug withdrawal. Doc. 9 at 2. Johnson was seen by a registered nurse at 2 a.m. on

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August 8, 2012. Doc. 1-1, ¶ 39. Defendants allege that Johnson again denied that she

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was suffering from withdrawals. Doc. 9 at 3. The nurse who examined Johnson noted

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that she was having dry heaves, administered an injection of Vistaril, and had her drink

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one half liter of fluids. Id. Johnson was then returned to her housing unit where she was

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found sometime later unconscious and not breathing. Id. Jail staff called a “man down,”

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administered CPR, and called 911. Id. Johnson was transported to St. Joseph’s Hospital

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where she was placed on a ventilator. Doc. 1-1, ¶ 52. Johnson’s breathing tube was

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removed on August 23, 2012, and she died within a few hours. Id., ¶ 53.

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Plaintiffs allege that no investigation was conducted into Johnson’s death. Id.,

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¶ 54. Plaintiffs instituted this action against several defendants, claiming violations of 42

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U.S.C. § 1983, gross negligence, deprivation of Johnson’s Eighth and Fourteenth

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Amendment rights, and wrongful death. Only the § 1983 and gross negligence claims are

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asserted against the Arpaios.

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II.

Legal Standard.

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the

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well-pled factual allegations are taken as true and construed in the light most favorable to

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the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal

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conclusions couched as factual allegations are not entitled to the assumption of truth,

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Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a

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motion to dismiss for failure to state a claim, In re Cutera Sec. Litig., 610 F.3d 1103,

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1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must plead

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enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007).

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‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

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has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556).

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“[W]here the well-pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the

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pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

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III.

This plausibility standard “is not akin to a

Analysis.

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The Arpaios contend that the County is the entity responsible for providing

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medical care for inmates in county jails and that Sheriff Arpaio does not have any

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statutory duty to provide and monitor such medical care. Doc. 9 at 4. The Sheriff has

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made this argument before without success. In Payne v. Arpaio, CV 09-1195-PHX-

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NVW, 2009 WL 3756679, at *1 (D. Ariz. Nov. 4, 2009), Sheriff Arpaio sought dismissal

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of § 1983 and negligence claims brought by a former inmate who had suffered diabetes-

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related injuries while in custody. The Sheriff argued that he was not a proper defendant

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because “he has no duty to provide or maintain healthcare in county jails[.]” Id. at *5.

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As authority for this proposition, the Sheriff cited the same statutes he cites here.

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Specifically, the Arpaios contend that Arizona Revised Statutes sections 11-291(A) and

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(B) assign to the County Board of Supervisors the responsibility of providing medical

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care for “persons under the supervision of a county corrections agency[.]” Doc. 9 at 4.

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The Arpaios further contend that because these provisions are silent as to “any specific

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duty of the Sheriff to provide and monitor medical care within jails,” they “cannot be

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extended by the Court to include such a duty.” Id. In Payne, the court concluded that

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“absolution from liability is a grave matter that cannot be inferred comfortably from

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silence.” Payne, 2009 WL 3756679 at *6. The Court agrees and declines to dismiss

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Plaintiffs’ claims against the Arpaios “merely because they are predicated on inadequate

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medical care.” Id.

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The Arpaios cite several cases for the proposition that district courts have refused

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to impose a duty to provide healthcare to inmates.

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mischaracterize these cases. In each case, the court dismissed claims against defendants

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other than the County Sheriff that were not considered to be persons amenable to suit

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under § 1983, such as Correctional Health Services (“CHS”) or Maricopa County

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Medical Estrella Jail. See Catto v. Correctional Health Serv., CV 09-2408-PHX-JAT,

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2010 WL 1286303, *2 (D. Ariz. Mar. 30, 2010) (finding that CHS was not a proper

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defendant); Rogers v. Maricopa County Sheriff’s Office, CV 07-641-PHX-DGC, 2008

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WL 898721, *2 (D. Ariz. Mar. 31, 2008) (finding that Maricopa County Medical Estrella

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Jail was not a proper defendant); Conroy v. Avalos, CV 08-210-PHX-MHM, 2008 WL

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1989788, *2 (D. Ariz. May 5, 2008) (finding that CHS was not a proper defendant). The

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Doc. 9 at 5.

The Arpaios

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Arpaios also cite to Doe v. Arpaio, 150 P.3d 1258, 1259 (Ariz. Ct. App. 2007), which

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notes that CHS provides medical care to inmates in county jails. None of these cases

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addressed the issue raised here – whether the cited statutory provisions absolve the

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Sheriff of liability for inadequate medical care.

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The Arpaios’ statutory interpretation arguments are also unavailing. They contend

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that the plain language of A.R.S. §§ 11-291(A)-(B) clearly and unequivocally places the

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responsibility for providing medical care to inmates on the county board of supervisors

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and that the Court should not extend these statutes to create a duty where the legislature

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has not imposed one. Doc. 9 at 4-5. But if the Legislature had intended to free the

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Sheriff from any liability for the medical care of inmates within his custody and control,

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it could have done so explicitly. It did not, and the Court will not make such an

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inference.

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The Arpaios also state that “[t]o the extent that Plaintiff alleges that the County’s

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polices were the driving force behind the provision of healthcare to Tracy Johnson, the

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Sheriff has no control over the policies,” and purport to cite Kentucky v. Graham, 473

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U.S. 159, 166 (1985), as support. Graham stands for the proposition that a § 1983

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defendant is “not liable in official capacity unless his agency’s official policies were the

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‘moving force’ behind the alleged constitutional violation.” Graham, 473 U.S. at 166.

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Plaintiffs have alleged policies of the Sheriff that contributed to the alleged constitutional

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violations. Doc. 1-1, ¶¶ 24-26. The Arpaios do not argue that the Sheriff’s official

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policies were not the moving force behind the alleged constitutional violation.

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Accordingly, the Court will not grant the motion to dismiss on this ground.

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Finally, the Arpaios cite to Rizzo v. Goode, 423 U.S. 362, 371 (1976), for the

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proposition that there must be an “affirmative link” between the individual conduct and

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the constitutional injury. This assertion, however, is not supported by the citation (id.),

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and does not provide grounds for dismissal.

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IT IS ORDERED that the Arpaios’ motion to dismiss (Doc. 9) is denied.

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Dated this 18th day of December, 2013.

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