Ferreira et al v. Arpaio et al

Filing 76

ORDER granting 15 Motion to Dismiss. FURTHER ORDERED that Count One's claim for negligence is DISMISSED. FURTHER ORDERED that Defendant Ryan Bates is dismissed from this matter for failure to execute service of process under Fed. R. Civ. P . 4(m). FURTHER ORDERED that any and all state law claims against Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt, Hovanec, Huber, Johnson, Smith, and Wade are DISMISSED. FURTHER ORDERED that any claims against Defendants Arpaio and Maricopa County based on a theory of respondeat superior/vicarious liability are DISMISSED. FURTHER ORDERED that Count Two, with respect to Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade is DISMISSED. FURTHER ORDERED that with no viable claims against them remaining in the Third Amended Complaint, Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade are DISMISSED from this matter. Signed by Senior Judge James A Teilborg on 7/25/16.(SJF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shari Ferreira, et al.,

No. CV-15-01845-PHX-JAT

Plaintiffs,

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v.

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ORDER

Joseph M Arpaio, et al.,

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Defendants.

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Pending before the Court is Defendants’1 Motion to Dismiss, (Doc. 15), brought in

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response to Plaintiff Shari Ferreira’s Third Amended Complaint (“TAC”), filed on

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December 2, 2015. (Doc. 12). The motion has been fully briefed, and oral argument was

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heard on July 20, 2016. The Court now rules on the motion.

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I.

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The Court need not set forth a full recitation of the facts underlying this matter.

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For purposes of adjudicating Defendants’ pending Federal Rule of Civil Procedure 12

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(b)(6) motion, a brief recital of the following facts—taken as true from the TAC—is

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Specifically, the motion was brought by Defendants Joseph M. Arpaio, Maricopa
County, Jeffrey Alvarez, M.D., Deputy Sheriff Cormier, Deputy Sheriff Hewitt, Deputy
Sheriff Hovanec, Deputy Sheriff Huber, Deputy Sheriff Hansen, Deputy Sheriff S.
Johnson, Deputy Sheriff Wade, Deputy Sheriff Lt. B. Smith, and Deputy Sheriff Sgt.
Garcia. (Doc. 15 at 2). The Court will refer to the movants collectively as “Defendants”
throughout the Order.

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sufficient. Plaintiff brought this civil rights action on behalf of decedent Zachary

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Daughtry in her capacity as personal representative of the estate. (Doc. 12 at 1). Daughtry

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was initially arrested on December 12, 2013, and booked into the 4th Avenue Jail

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complex. (Id. at 8). Over the following months, Daughtry “had several assignments and

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transfers” to different facilities, but was ultimately transferred back to the 4th Avenue Jail

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on July 6, 2014. (Id.). Between his initial booking and July 6, Daughtry had been referred

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to “Psychiatric Services” on several occasions in light of “medical and mental health

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issues that required ongoing medical and psychological treatment.” (Id.).

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On July 9, 2014, fellow inmate Defendant Ryan Bates2 was placed in a cell with

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Daughtry after Bates was discovered in a restricted area of the 4th Avenue Jail. (Doc. 12

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at 9 ¶ 42-43). At approximately 2200 hours, officers were “escorting medical personnel

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and conducting a general headcount,” and passed by Daughtry’s cell. (Id. at 12 ¶ 67).

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When the officers passed by, they observed Bates standing over Daughtry, who was

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unresponsive and visibly bleeding from the head and face. (Id.). Daughtry received

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medical treatment on-site, and was subsequently transported to Banner Good Samaritan

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Hospital “with life threatening injuries.” (Id. at 12-13). Daughtry suffered “multiple facial

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fractures, major head injuries including orbital fractures, nose fractures, a broken jaw,

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internal injuries, a subdural hematoma to the brain with brain bleed, and severe

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lacerations to his head and left ear.” (Id. at 13). On July 20, 2014, Daughtry passed away

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from his injuries. (Id. at 15 ¶ 76).

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This matter, initially brought in Maricopa County Superior Court, was removed on

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September 16, 2015. (Doc. 1). The Complaint, thrice amended, alleges claims of

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negligence, gross negligence, wrongful death, and constitutional violations under Title 42

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U.S.C. § 1983 (2012). On December 21, 2015, Defendants filed the pending motion to

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dismiss. The motion has been fully briefed, (Docs. 15, 34, 38), and oral argument was

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At oral argument, Plaintiff asked that the Court dismiss Defendant Bates from
the matter for failure to comply with service of process requirements under Federal Rule
of Civil Procedure Rule 4(m). The Court will do so. In the interest of clarity, the Court
will continue to refer to Bates as “Defendant” throughout the Order.
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heard on July 20, 2016. Having set forth the pertinent factual and procedural background,

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the Court turns to Defendants’ motion.

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II.

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To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must

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meet the requirements of Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) requires a “short and plain

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statement of the claim showing that the pleader is entitled to relief,” so that the defendant

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has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47

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(1957)). A complaint must also contain sufficient factual matter, which, if accepted as

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true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009). Facial plausibility exists if the pleader sets forth factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged. Id. Plausibility does not equal “probability,” but requires more than a sheer

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possibility that a defendant acted unlawfully. Id. “Where a complaint pleads facts that are

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‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between

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possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at

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557).

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Although a complaint attacked for failure to state a claim does not need detailed

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factual allegations, the pleader’s obligation to provide the grounds for relief requires

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“more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Rule 8(a)(2)

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“requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief,” as

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“[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could

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satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but

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also ‘grounds’ on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A. Wright &

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Arthur R. Miller, Federal Practice & Procedure § 1202, pp. 94, 95 (3d ed. 2004)). Thus,

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Rule 8’s pleading standard demands more than “an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

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The Court must construe the facts alleged in the complaint in the light most

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favorable to the drafter and must accept all well-pleaded factual allegations as true,

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Shwarz, 234 F.3d at 435, Cafasso, 637 F.3d at 1053, but need not accept as true legal

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conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986).

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III.

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Defendants’ motion, (Doc. 15), asserts several grounds for dismissal, contending

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that: (1) Defendants cannot be held liable for mere negligence pursuant to A.R.S. § 12-

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820.02 (A)(4); (2) Plaintiff failed to name or serve certain Defendants with a Notice of

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Claim (“Notice”), as required by A.R.S. § 12-821.01; and (3) the TAC fails to state a

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plausible claim against certain Defendants. The Court will address each of the arguments

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in turn.3

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A.

Plaintiff’s Negligence Claim

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Count One of the TAC asserts a claim of “[g]ross [n]egligence and [n]egligence

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against [a]ll Defendants.” (Doc. 12 at 16). “A.R.S. § 12-820.02 (A)(4) requires a showing

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of ‘gross negligence’ in order for a public entity or employee to be liable for ‘an injury

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caused by a prisoner to any other prisoner.’” Murphy v. County of Yavapi, No. CV-04-

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1861-PCT-DGC, 2006 U.S. Dist. LEXIS 63732, at *21-22 (D. Ariz. Aug. 23, 2006)

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(citation omitted). A.R.S. § 12-820 (5) defines “prisoner” as “a person incarcerated while

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awaiting sentence or while serving a sentence imposed by a court of law.”

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Defendants’ motion initially argued that Plaintiff’s 42 U.S.C. § 1983 claims
should be dismissed due to Plaintiff’s lack of standing to bring a civil rights claim on
behalf of Daughtry’s estate. (Doc. 15 at 11-12). However, Plaintiff has since been
appointed the personal representative of Daughtry’s estate, and Defendants withdrew this
argument. (Doc. 38 at 2).
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Plaintiff does not contend that Defendant Bates’ and Daughtry’s status is anything

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other than “prisoner” as defined by the statute, and “do[es] not contest that, for purposes

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of [the] state law claims for relief, the appropriate standard of culpability is that of gross

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negligence.” (Doc. 34 at 10) Accordingly, to the extent the TAC alleges a claim of

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negligence against Defendants, it is hereby dismissed, with prejudice.

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B.

Compliance with A.R.S. § 12-821.01

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The motion next argues that Defendants Alvarez, Cormier, Garcia, Hansen,

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Hewitt, Hovanec, Huber, Johnson, Smith, and Wade were not named in, or served with a

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Notice, as is required by A.R.S. § 12-821.01. (Doc. 15 at 8-10). Defendants further assert

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that because the state law claims are barred for failure to comply with the notice of claim

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statute, all vicarious liability claims asserted against Defendants Arpaio and Maricopa

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County also fail.4 (Doc. 38 at 8).

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The Court must first address whether it may entertain Defendants’ argument,

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which relies on documentary evidence outside of the TAC. On a motion to dismiss for

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failure to state a claim, the scope of review is generally “limited to the contents of the

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complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citing Warren v. Fox

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Family Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003)). However, the Court

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may also consider any evidence upon which the complaint “necessarily relies,” which is

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satisfied where: “(1) the complaint refers to the document; (2) the document is central to

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the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to

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the 12(b)(6) motion.” Id. (citing Branch v. Tunnell, 449, 453-54 (9th Cir. 1994),

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overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th

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Cir. 2002)). Having reviewed the TAC and the Notice attached to Defendants’ motion,

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(Doc. 15-1 at 2), the Court finds that the TAC necessarily relies on the Notice.

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First, the TAC explicitly refers to the document, as it alleges that “Plaintiff

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The Court will address this particular argument infra, in Section IV of the Order.
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satisfied the provisions of A.R.S. § 12-821.01 by serving a notice of claim more than 60

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(sixty) days prior to the date of the filing of this complaint,” and that certain “Defendants

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denied the claim” while “[o]ther [D]efendants have not responded to the notice of claim.”

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(Doc. 12 at 4). Second, the Notice is central to Plaintiff’s claim. As discussed fully infra,

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Arizona law mandates that any person who has a claim against a public employee must

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file a Notice prior to filing suit. A.R.S. § 12-821.01 (A). Failure to strictly comply with

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the statute’s requirements results in preclusion of a plaintiff’s claims. Simon v. Maricopa

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Med. Ctr., 234 P.3d 623, 631 (Ariz. Ct. App. 2010). The importance the Arizona

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legislature has placed on compliance coupled with the harsh penalty for noncompliance

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make this procedural prerequisite central to Plaintiff’s civil rights claims against public

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employees. Finally, neither party questions the authenticity of the Notice attached to

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Defendants’ motion. Accordingly, the TAC necessarily relies upon the Notice, and may

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consider it. See Mitchell v. City of Flagstaff, CV 11-8140-PCT-FJM, 2011 U.S. Dist.

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LEXIS 133766, at *3 (D. Ariz. Nov. 18, 2011) (considering a Notice in adjudicating a

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Rule 12(b)(6) motion to dismiss).

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As noted supra, prior to filing suit in state or federal court, Arizona law requires

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that “[p]ersons who have claims against a . . . public employee shall file claims with the

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person or persons authorized to accept service for the . . . public employee as set forth in

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the Arizona rules of civil procedure.” A.R.S. § 12-821.01 (A); Simon, 234 P.3d at 629.

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The Notice must be submitted “within one hundred eighty days after the cause of action

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accrues,” and must contain a statement of the facts that establish the basis for liability and

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an amount for which the claim can be settled. A.R.S. § 12-821.01 (A). This allows “the

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public entity to investigate and assess liability, permit the possibility of settlement prior

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to litigation, and to assist the public entity in financial planning and budgeting.”

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Martineau v. Maricopa County, 86 P.3d 912, 915-16 (Ariz. Ct. App. 2004). Accrual of a

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cause of action occurs “when the damaged party realizes he or she has been damaged and

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knows or reasonably should know the cause, source, act, instrumentality or condition that

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caused or contributed to the damage.” A.R.S. § 12-821.01 (B).

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“[S]trict compliance with A.R.S. § 12-821.01 (A) is required.” Simon, 234 P.3d at

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629 (citing Falcon ex. rel. Sandoval v. Maricopa County, 144 P.3d 1254, 1256 (Ariz.

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2006)). “Substantial compliance” is insufficient, even if the defendants have “actual

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notice of the claim.” Id. (citation omitted). Should a plaintiff fail to file a Notice within

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the statutory time limit, her “claim is barred by statute.” Falcon, 144 P.3d at 1256 (citing

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Salerno v. Espinoza, 115 P.3d 626, 629 (Ariz. Ct. App. 2005)); see also Crum v. Superior

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Court, 922 P.2d 316, 317 (Ariz. Ct. App. 1996) (failure to include all claims and a

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settlement amount in the Notice resulted in preclusion).

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Plaintiff’s TAC alleges claims against Maricopa County, Maricopa County Sheriff

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Joeseph M. Arpaio, M.D. Alvarez, and Deputy Sheriffs Cormier, Hewitt, Hovanec,

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Huber, Hansen, Johnson, Wade, Smith and Garcia. The TAC refers to the individually

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named Deputy Sheriffs and M.D. Alvarez as employees of either Maricopa County or

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Maricopa County Sheriff Joeseph Arpario. (Doc. 12 at 3-5). Arizona courts have

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repeatedly held that to comply with Arizona’s notice of claim statute, a prospective

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plaintiff must furnish a copy of the Notice on “both the employee individually and to his

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employer.” Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007)

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(citation omitted); Hendershott v. Babeu, 2015 Ariz. App. Unpub. LEXIS 372, at *11

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(Ariz. Ct. App. March 24, 2015) (citation omitted); Dana v. City of Yuma, 2011 Ariz.

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App. Unpub. LEXIS 1085, at *14 (Ariz. Ct. App. Aug. 16, 2011); Dimmig v. Pima

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County, 2009 Ariz. App. Unpub. LEXIS 1520, at *5 (Ariz. Ct. App. Oct. 27, 2009);

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Havasupai Tribe v. Ariz. Bd. of Regents, 204 P.3d 1063, 1080 (Ariz. Ct. App. 2008);

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Valenzuela v. City of Phoenix Police Dep’t, 2007 Ariz. App. Unpub. LEXIS 885, at *3

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(Ariz. Ct. App. Dec. 31, 2007); Crum, 922 P.2d at 317; see also Johnson v. Superior

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Court, 763 P.2d 1382, 1384 (Ariz. Ct. App. 1988) (recognizing that under the

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predecessor statute a claimant “must give notice of the claim to both the employee

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individually and to his employer”).

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Having reviewed the record in its entirety, the Court finds no evidence that

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Plaintiff filed a Notice with the individually named employee Defendants in this lawsuit.

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Even accepting Plaintiff’s assertion that she did not know of the individual Defendants’

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conduct and identities until April of 2015, (Doc. 34 at 10), Plaintiff has never filed a

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Notice with any individual employee Defendant. Thus, even if the cause of action that

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forms the basis for this lawsuit did not accrue until April of 2015 under A.R.S. § 12-

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821.01 (B), the 180 day time limit would have run at some point in October of 2015.

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Plaintiff asserts that she filed a timely Notice on January 5, 2015. (Doc. 34 at 8). There is

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no evidence in the record to support this claim. The only Notice present in the record—

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and Plaintiff does not contend that more exist—is the January 5, 2015, Notice filed

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against “Maricopa County And/Or Maricopa County Sheriff.” (Doc. 15-1 at 2). The fact

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that the Notice fails to identify even a single individual responsible for the allegedly

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tortious or unconstitutional actions cripples any argument that a timely Notice was served

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on the aforementioned Defendants.

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Moreover, even if the Court were to consider this as a Notice served on the

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individual employee Defendants, the Arizona Court of Appeals has held that Plaintiff’s

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efforts are insufficient. In Harris, the plaintiff served a Notice on Cochise County, and

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the Notice referred to an individual defendant “as the statutory agent,” but failed to refer

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to her at all in the body of the Notice, and did not make any demand for money or

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settlement upon her. 160 P.3d at 230. Rather, the body of the Notice “repeatedly refer[ed]

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to ‘CHS officials,’ but d[id] not once name [the individual].” Id. Thus, “nothing exist[ed]

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in the notice that would have alerted the [individual] to the fact that a claim was being

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asserted against her,” and the “most she could expect to glean from this notice is that as

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[the entity’s] statutory agent, she must receive process for it and forward it to the

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principal.” Id. The instant action is nearly identical, except Plaintiff failed to name any of

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the individual employee Defendants as “statutory agents” in the Notice. It follows that

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even accepting Plaintiff’s efforts to date, they fail as a matter of law.5

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Plaintiff also makes no attempt to argue that the Notice was furnished on an
“agent authorized by appointment or by law to receive service of process.” Ariz. R. Civ.
P. 4.1(d); Shakur v. Schriro, 2011 Ariz. App. Unpub. LEXIS 839, at *9 (Ariz. Ct. App.
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In sum, the record establishes that Plaintiff failed to serve a Notice on the

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individually named employee Defendants. Plaintiff cannot rely on “excusable neglect,” as

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the doctrine no longer relieves a plaintiff of compliance. See Lee v. State, 182 P.3d 1169,

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1179 (Ariz. 2008) (noting that the Arizona legislature terminated this exception when it

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amended the notice of claim statute). “Any claim which is not filed within one hundred

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eighty days after the cause of action accrues is barred and no action may be maintained

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thereon.” Crum, 922 P.2d at 317 (citing A.R.S. § 12-821.01). Strict compliance is

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mandatory. Simon, 234 P.3d at 629 (citation omitted). Plaintiff has failed to comply, and

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her state law claims against Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt,

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Hovanec, Huber, Johnson, Smith and Wade are therefore barred.

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C.

The Validity of Plaintiff’s Pleaded § 1983 Claims6

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Turning to Plaintiff’s federal claims, Defendants assert that Plaintiff’s § 1983

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claims against Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade must be

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dismissed for failure to state a plausible claim of relief. (Doc. 15 at 4-8). “Jail officials

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have a duty to protect inmates from violence at the hands of other inmates.” Murphy,

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2006 U.S. Dist. LEXIS 63732, at *16 (citing Hearns v. Terhune, 413 F.3d 1036, 1040

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(9th Cir. 2005)). The failure of jailers to protect the inmate population from the attacks by

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other inmates may result in a violation of the victim’s constitutional rights where “(1) the

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deprivation alleged is ‘objectively, sufficiently serious’ and (2) the prison officials had a

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June 21, 2011). To qualify as an agent to accept service, an attorney must “appear . . .
authorized, either expressly or impliedly, to receive service of process for his client.”
Kline v. Kline, 212 P.3d 902, 908 (Ariz. Ct. App. 2009) (citation omitted). But even if
Plaintiff had raised this argument, it would fail in light of Harris, 160 P.3d at 230.
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At oral argument held on July 20, 2016, Plaintiff conceded that the Court would
be “within its rights” to find that the TAC failed to allege a facially plausible claim
against Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade, and asked that
they be dismissed without prejudice from the matter. Even accepting Plaintiff’s
concession of the issue, in the interest of preserving a full and clear record of the entirety
of this matter, the Court has analyzed the TAC’s claims against the aforementioned
Defendants under Rule 8.
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‘sufficiently culpable state of mind,’ acting with deliberate indifference.” Hearns, 413

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F.3d at 1040 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “Deliberate

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indifference is a high legal standard,” higher than negligence, Hallett v. Morgan, 296

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F.3d 732, 744 (9th Cir. 2004) (citation omitted), and even gross negligence. Wood v.

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Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). But it is “satisfied by something less

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than acts or omissions for the very purpose of causing harm or with knowledge that harm

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will result.’” Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. at 835) (alterations

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omitted).

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Plaintiff’s opposition brief to the pending motion includes a number of factual

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assertions not contained in the TAC. (Doc. 34 at 2-4, 5). The Court may not, and will not

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consider them in its analysis. Frenzel v. Aliphcom, 76 F. Supp. 3d 999, 1009 (N.D. Cal.

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2014) (citations omitted) (it is “axiomatic that the complaint may not be amended by the

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briefs in opposition to a motion to dismiss”). The Court’s review of the facts will be

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restricted to those pleaded in the TAC.

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1.

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The TAC names Defendant Deputy Sheriff Sergeant Garcia as an “employee[] of

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the Maricopa County Sheriff’s Office, (Doc. 1 at 3 ¶ 7), and alleges that he was “on duty

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on July 9, 2014[,] at the 4th Avenue Jail.” (Id. at 5 ¶ 15). Beyond these two instances, the

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TAC is bereft of any factual allegations relating to Defendant Garcia. Plaintiff simply

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asserts that “[t]he wrongful conduct of [D]efendants, and each of them, as alleged herein

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under color of State law, constitute violations of the United States Constitution . . . .” (Id.

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at 20 ¶ 107). Plaintiff’s theory of recovery centers on Defendants’ failure to protect

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Daughtry by placing Bates in the same cell as Daughtry. 7 None of the pleaded facts in the

Defendant Garcia

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The TAC makes no claim that Garcia was in a position to set any kind of policy,
procedure, or process. It also makes no claim that Garcia could, and failed to undertake
some act with respect to providing appropriate medical and psychiatric care to Daughtry
which would have precluded Daughtry from being placed in a jail cell with Defendant
Bates. Thus, the Court focuses on Garcia’s role in Bates being placed in Daughtry’s cell
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TAC place Defendant Garcia anywhere near this action, much less allege that Garcia

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made the decision to place Bates in Daughtry’s cell, that he participated in placing Bates

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in Daughtry’s cell, or that he knew Bates had been placed in the cell and failed to act. In

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sum, taking all pleaded facts in the TAC as true, and reading them in the light most

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favorable to Plaintiff, the TAC fails to allege a plausible claim of relief against Defendant

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Garcia.

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Plaintiff’s brief opposes the motion on two grounds.8 Plaintiff first argues that

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“under well-established Ninth Circuit case law, each individual that participates in a

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group-based violation of a constitutional right is responsible for the harm caused by the

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violation.” (Doc. 34 at 6). But “[a]n officer’s liability under section 1983 is predicated on

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his ‘integral participation’ in the alleged violation” which requires “some fundamental

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involvement in the conduct that allegedly caused the violation.” Blankenhorn v. City of

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Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (quoting Chuman v. Wright, 76 F.3d 292,

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294-95 (9th Cir. 1996)). Here, the pleaded facts fail to even suggest that Defendant

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Garcia was in the vicinity of the alleged violations, and fail to establish that Defendant

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Garcia was an integral participant in the actions that led to Daughtry’s death.

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Plaintiff’s brief next argues that she is at an “informational disadvantage,” and that

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dismissing Defendant Garcia at this stage, without discovery, “would be premature in

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light of . . . longstanding” doctrine. (Doc. 34 at 6). Plaintiff relies on Alston v. Parker,

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363 F.3d 229, 233 n.6 (3d Cir. 2004), in part,9 a case in which the Third Circuit discussed

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on July 9, 2014.
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Plaintiff opposes Defendants’ motion in general on these two grounds. The Court
has specifically addressed them in response to Defendants’ assertion that the TAC fails to
state a plausible claim against Defendant Garcia. With respect to the remaining
Defendants, the Court does not specifically address Plaintiff’s “group-based violation”
and “informational disadvantage” arguments. The Court does, however, note that its
analysis pertaining to Defendant Garcia applies to each Defendant that follows. In short,
Plaintiff’s arguments are not persuasive.
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Plaintiff’s argument leads with citation to Colburn v. Upper Darby Township,
838 F.2d 663, 667 (3d Cir. 1988). In Colburn, the Third Circuit, discussed the efforts of
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the no longer viable “no set of facts” pleading standard, noting that a plaintiff “need not

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plead facts” but “only make out a claim upon which relief can be granted.” Id. The Court

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went on to recognize that in certain cases, pro se prisoners pursuing civil rights actions

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may need discovery to determine “identities and roles of relevant actors” as “owing to

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their incarceration or institutionalization, [they are] unable to conduct pre-trial

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investigation to fill in the gaps.” Id.

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The Court finds that no informational disadvantage exists that is substantial

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enough to justify leniency with respect to Rule 8’s pleading standards. Unlike the

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plaintiff in Alston, Plaintiff here has been represented by counsel throughout this matter.

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Moreover, Plaintiff’s own opposition asserts that she “could not have known of the

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individual Defendants’ conduct until April of 215, when Defendants finally released the

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investigation” they conducted to Plaintiff, (Doc. 34 at 10), nearly eight months prior to

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filing the TAC. Finally, the court in Alston made it clear that its focus was to address the

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institutional barriers that exist for pro se prisoners who do not have access to counsel and

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due to their own incarceration, cannot undertake “a pre-trial investigation to fill in the

16

gaps.” 363 F.3d at 233 n.6. But even assuming Plaintiff is at a sufficient “informational

17

disadvantage,” this Court has found that such plaintiffs are entitled to “some benefit of

18

the doubt to go along with the specific facts [the complaint] has pled.” Hamblen v.

19

Diamante Crossroads Plaza, LLC, No. CV 08-0561-PHX-JAT, 2009 U.S. Dist. LEXIS

20
21
22
23
24
25
26
27
28

an administratrix to plead sufficient facts to survive a Rule 12(b)(6) motion to dismiss.
The court found that “[o]ne of the circumstances to be considered is whether the plaintiff
is in a position to know or acquire the relevant factual details,” taking special
consideration of the fact that “the results of [the] defendants’ investigations into the
incident [we]re apparently not a matter of public record.” Id. at 667. Here, Plaintiff has
not alleged or asserted that Defendants’ investigation was not released to her. And
previous filings by Plaintiff have acknowledged that counsel was given the results of
Defendants’ investigation in April of 2015. (Doc. 34 at 9). Further, elements of the TAC
are clearly drawn from Defendants’ efforts to investigate the actions that led to
Daughtry’s death. Thus, even taking into consideration Plaintiff’s “position to know or
acquire the relevant factual details,” the Court finds that she is not at such an
informational disadvantage so as to excuse the failure to allege a plausible claim for relief
against Defendant Garcia.
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1

26191, at *6 (D. Ariz. March 30, 2009) (quoting United Technologies Corp. v. Mazer,

2

556 F.3d 1260, 1273 (11th Cir. 2009)). Giving Plaintiff “some benefit of the doubt,” the

3

TAC pleads insufficient facts to state a plausible claim of relief with respect to Defendant

4

Garcia, who appears nowhere in the pleaded facts, save for being named as an employee

5

who was at the 4th Avenue Jail on July 9, 2014. Plaintiff’s § 1983 claim against

6

Defendant Garcia must be dismissed.

7
8

2.

Defendant Smith

9

The TAC alleges that Defendant Lt. B. Smith was an employee of the Maricopa

10

County Sheriff’s Office and was on duty at the 4th Avenue Jail on July 9, 2014. (Doc. 12

11

at 3 ¶ 7, 5 ¶ 15). The TAC further alleges that at approximately 2200 hours, after

12

Defendants Cormier and Wade had discovered an unresponsive Daughtry in his cell,

13

Defendant Smith “ordered [Defendant] Hovanec to open the cell door of” Daughtry’s

14

cell. (Id. at 12 ¶ 69). This was after Defendant Bates had physically assaulted Daughtry,

15

after Defendants Wade and Cormier “made a radio call for a man down” and after

16

“[m]ultiple [o]fficers responded” to Daughtry’s cell. (Id. at 12 ¶ 67-69). Defendant Smith

17

is not mentioned again throughout the TAC.

18

Having reviewed the TAC, it is evident that no pleaded facts allege wrongdoing

19

with respect to Bates being placed in Daughtry’s cell on the part of Defendant Smith

20

specifically. The only action he is expressly alleged of undertaking is ordering that

21

Defendant Hovanec open the door to Daughtry’s cell to render aid. The TAC does not

22

plead that Defendant Smith took part in placing Bates in Daughtry’s cell, that he directed

23

any other officer to place Bates in Daughtry’s cell,10 or that he was aware that Bates had

24

been placed in the cell and failed to act.

25
26
10

27
28

The TAC alleges that Defendants Huber and Hansen transported Bates from the
holding cell to Daughtry’s at the direction of “Towers security,” (Doc. 12 at 10 ¶ 48), but
there are no supporting facts to infer that Defendant Smith was either part of “Towers
security,” or ordered “Towers security” to call for Bates to be moved.
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1

Absent any pleaded facts suggesting that Defendant Smith was directly involved

2

in the series of actions that led to Daughtry’s death, it is possible—although the TAC

3

certainly does not clearly allege—that Defendant Smith’s rank as Lieutenant made him

4

the highest ranking officer on-site on July 9, 2014, and that his status as the highest

5

ranking officer makes him culpable for the series of actions that resulted in Daughtry’s

6

death. Having parsed through the language of Count Two, the Court has discerned

7

several specific allegations: that Defendants were deliberately indifferent toward a

8

serious safety hazard threatening Plaintiff where they “transferred a dangerous and

9

psychologically unstable inmate . . . into a single cell unit with Daughtry who was also

10

psychologically unstable,” (Doc. 12 at 20 ¶ 107), that Defendants failed to “provide

11

Daughtry with proper, reasonable, basic, and necessary psychiatric and medical

12

treatment,” (id. at 21 ¶ 108), and that Defendants “failed to provide a safe and healthy

13

environment while Daughtry was detained at [the] 4th Avenue Jail.” (Id. at 21 ¶ 111).

14

But even taking all pleaded facts as true, and reading them in the light most

15

favorable to Plaintiff, the TAC fails to plead sufficient facts to plausibly establish that

16

Defendant Smith was responsible for, had some active role in, or failed to redress any of

17

the conclusory allegations set forth above. It is not sufficient under Rule 8 to generally

18

plead, for example, that it was an unsafe and unhealthy environment that lacked “basic,

19

and necessary psychiatric and medical treatment,” and then fail to set forth any specific

20

factual allegations to underpin such claims, all while failing to tie any of the conclusory

21

claims to the individual Defendant in even a general sense. More is required to plead a

22

facially plausible claim that Defendant Smith was deliberately indifferent towards likely

23

inmate violence that deprived Daughtry of a sufficiently serious constitutional right.

24

Finally, Count Two of the TAC alleges that certain Defendants are liable under §

25

1983 for setting and implementing unconstitutional protocols and policies, but these are

26

specifically limited to allegations against Defendant Arpaio, (Doc. 12 at 19 ¶ 103),

27

Defendant Maricopa County, (id. at 18 ¶ 101), and Defendant Alvarez. (Id. at 20 ¶ 104-

28

105). Count Two does go on to generally allege that Defendants “knowingly and with

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1

deliberate indifference, permitted the implementation of inappropriate de facto policies”

2

that are constitutionally infirm. (Doc. 12 at 18 ¶ 102). But the TAC fails to assert—even

3

in a cursory manner—which Defendants are responsible for implementing which of the

4

nine allegedly unconstitutional “de facto policies” Plaintiff has set forth. Even assuming

5

that Defendant Smith, possibly the highest ranking on-site officer on July 9, 2014, was

6

responsible for setting “de facto policies,” the nine alleged policies are simply recitations

7

of legal conclusions. For example, the TAC pleads that Defendants engaged in

8

“unconstitutionally cruel and unusual confinement” and that Defendants accepted “the

9

use of unconstitutionally cruel and unusual confinement” and Defendants “fail[ed] to

10

discipline or terminate jail personnel known to engage in the use of cruel and unusual

11

confinement,” and that Defendants “fail[ed] to adequately train and supervise jail

12

personnel.” (Doc. 12 at 19 ¶ 102). The TAC lists several additional alleged policies, but

13

they suffer from the same deficiencies. They are conclusions that lack any underlying

14

factual support.

15

The TAC fails to allege what constituted cruel and unusual confinement, it fails to

16

allege which personnel engaged in the use of cruel and unusual confinement, and it fails

17

to allege what actions by what Defendants form the basis of the failure to adequately train

18

and supervise claim. The only two specific factual assertions that can form the basis of

19

“de facto policies” are the decisions to place Defendant Bates in the same cell as

20

Daughtry, and, perhaps, the confinement of Daughtry in a standard cell when he required

21

specific psychiatric care and treatment. The TAC fails to plausibly allege that Defendant

22

Smith had any role in either. In sum, the alleged policies—which, in theory, could

23

possibly be implemented by Defendant Smith due to his possible position within the 4th

24

Avenue Jail chain of command—amount to legal conclusions and do not allow Court to

25

draw the inference that Defendant Smith enacted these unconstitutional “de facto

26

policies.”

27
28

Taking as true all pleaded facts in the TAC and viewing them in the light most
favorable to Plaintiff, it fails to allege a plausible § 1983 claim against Defendant Smith.

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1
2

3.

Defendants Hewitt and Johnson

3

The TAC alleges that Defendants Hewitt and Johnson were employees of the

4

Maricopa County Sheriff’s Office and were on duty at the 4th Avenue Jail on July 9,

5

2014. (Doc. 12 at 3 ¶ 7, 4 ¶ 15). The TAC further alleges that Defendants Hewitt and

6

Johnson were the officers who encountered Defendant Bates in the “Sally Port,” a

7

restricted area in the 4th Avenue Jail. (Doc. 12 at 9 ¶ 42). Defendants Hewitt and Johnson

8

told Bates that he was not allowed to be in the restricted area, and that he needed to return

9

to his cell. Bates did not comply, and after repeating their command to return to his cell,

10

Defendants Hewitt and Johnson handcuffed Bates and placed him in a holding tank until

11

“he could be moved to a cell.” (Id. at 9-10 ¶ 42-46). Defendants Huber and Hansen, at the

12

direction of “Towers security,” then transferred Bates from the holding tank to “the cell

13

that Daughtry was also housed in.” (Id. at 10 ¶ 49). After Defendant Bates had been

14

transferred to Daughtry’s cell, Defendants Hewitt and Johnson “brought Bates’ personal

15

belongings to his cell,” which Bates now shared with Daughtry. (Id. at 10 ¶ 50). These

16

allegations comprise the entirety of the claims against Defendants Hewitt and Johnson.

17

In light of Plaintiff’s concession that the aforementioned factual allegations are

18

insufficient to make out a facially plausible claim of relief against Defendants Hewitt and

19

Johnson, the Court will grant Defendants’ motion on this issue.

20
21

4.

22

Defendants Cormier and Wade were employees of the Maricopa County Sheriff’s

23

Office that they were on duty on July 9, 2014, and were assigned to the housing unit

24

where Daughtry was held. (Doc. 12 at 3 ¶ 7, 4 ¶ 15). The TAC goes on to allege that

25

exactly when Defendant Bates was placed into Daughtry’s cell, Cormier and Wade were

26

“assigned to the housing unit” and “were passing out canteen.” (Id. at 11 ¶ 56, 63). At

27

approximately 2200 hours on July 9, 2014, Defendant Hovanec instructed Defendants

28

“Wade and Cormier to stop canteen and start general headcount.” (Id. at ¶ 63). As

Defendants Cormier and Wade

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1

Defendants Cormier and Wade were “conducting a headcount in [pod] 2B,” they walked

2

by the cell that Daughtry was in and “saw [D]efendant Bates standing over Daughtry who

3

was unconscious and unresponsive and lying face down in a puddle of blood.” (Id. at 12 ¶

4

67). Defendant Cormier “made a radio call for a man down and requested for an AED

5

(Automated External Defibrillator).” (Id.) Defendant Wade also “made a radio call to

6

security control for a ‘man down.’” (Id. at 11 ¶ 66). Defendants are not mentioned

7

thereafter in the TAC.

8

Having reviewed the TAC, for the reasons state above, the Court finds that

9

Plaintiff has pleaded insufficient factual allegations to allege a plausible claim against

10

Defendants Cormier and Wade. No pleaded facts suggest that Defendants Cormier and

11

Wade had any active role in placing Defendant Bates in Daughtry’s cell. Nor does the

12

TAC suggest that the Defendants were even aware that Bates had been placed in

13

Daughtry’s cell until they discovered Daughtry unconscious on the floor of his cell when

14

they were “conducting a headcount.” And the TAC fails to allege that Defendants

15

Cormier and Wade had some role in directing, overseeing, or ordering Bates’ transfer to

16

Daughtry’s cell. Finally, the TAC fails to allege sufficient facts to plausibly assert that

17

Defendants Cormier and Wade had some role in setting “de facto policies” or procedures

18

that led to Daughtry’s death. The pleaded facts, taken as true, establish that Defendants

19

Cormier and Wade were on duty the night of Daughtry’s death, had no role in bringing

20

about his death, and took action upon discovering Daughtry to alert on-site officers that

21

there was a “man down” and that immediate medical attention was necessary. (Doc. 12 at

22

11-12 ¶66-67). In sum, the TAC fails to plausibly allege that Defendants Cormier and

23

Wade were deliberately indifferent towards the deprivation of Plaintiff’s sufficiently

24

serious rights at the hands of another inmate, or that Defendants Cormier and Wade failed

25

in their obligation to keep Daughtry safe from the likely attack of another inmate.

26

Farmer, 511 U.S. at 828. Accordingly, the § 1983 claims against Defendants Cormier

27

and Wade must be dismissed.

28

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1

IV.

2

In light of the Court’s ruling on Plaintiff’s Rule 12(b)(6) motion, the Court must

3

address which of the TAC’s claims remain. As discussed supra, Defendant Bates is

4

dismissed for failure to serve, Plaintiff’s negligence claim must be dismissed, and all of

5

Plaintiff’s state law claims against Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt,

6

Hovanec, Huber, Johnson, Smith, and Wade must be dismissed for failure to comply with

7

A.R.S. § 12-821.01.

8

It is clear that any and all state law claims against the aforementioned individual

9

employee Defendants are barred. See Harris, 160 P.3d at 230 (quoting Salerno, 115 P.3d

10

at 628) (emphasis in original) (noting that failure to comply “‘bars any claim’ against the

11

entity or employee”). Defendants assert that Plaintiff’s failure to comply with Arizona’s

12

notice of claim statute also bars any and all claims against Defendants Arpaio and

13

Maricopa County under a theory of respondeat superior/vicarious liability. (Doc. 38 at 7-

14

8). The Court agrees.

15

“Under Arizona law, ‘a dismissal with prejudice is an adjudication on the merits of

16

the case.’” Nixon v. Mohave County, No. 3:14-CV-8031-HRH, 2014 U.S. Dist. LEXIS

17

116009, at *6 (D. Ariz. Aug. 20, 2014) (quoting De Graff v. Smith, 157 P.2d 342, 345

18

(Ariz. 1945)); see also Orlando v. City of Mesa, 2009 Ariz. App. Unpub. LEXIS 143, at

19

*3 (Ariz. Ct. App. March 5, 2009) (“Arizona has long recognized that a dismissal with

20

prejudice of a plaintiff’s claims against an employee constitutes an adjudication on the

21

merits.”). Failure to comply with the notice of claim statute results in dismissal of any

22

and all claims against that entity or individual, with prejudice. See A. Miner Contr., Inc.

23

v. City of Flagstaff, 2015 Ariz. App. Unpub. LEXIS 1200, at *1-6 (Ariz. Ct. App. Oct. 1,

24

2015) (affirming the superior court’s dismissal of a plaintiff’s “complaint with prejudice

25

for failure to comply with Arizona’s notice of claim statute”); see also Merrick v. Ryan,

26

2015 Ariz. App. Unpub. LEXIS 1173, at *1 (Ariz. Ct. App. Sept. 24, 2015) (same); Best

27

v. State, 2014 Ariz. App. Unpub. LEXIS 784, at *1 (Ariz. Ct. App. June 17, 2014)

28

(same); Falcon, 144 P.3d at 1256 (citing Salerno, 115 P.3d at 629) (“If a notice of claim

- 18 -

1

is not properly filed within the statutory time limit, a plaintiff’s claim is barred by

2

statute.”).

3

Where claims against an individual employee—or employees—are “dismissed

4

with prejudice, then the employer can never be found vicariously liable.” Nixon, 2014

5

U.S. Dist. LEXIS 116009, at *6 (citation omitted); see also Law v. Verde Valley Med.

6

Ctr., 170 P.3d 701, 705 (Ariz. Ct. App. 2007) (noting that when a judgment on the merits,

7

including a dismissal with prejudice, is entered in favor of an employee, “there is no fault

8

to impute and the party potentially vicariously liable” is not responsible).

9

Here, Plaintiff’s state law claims against the individual employee Defendants have

10

been dismissed, with prejudice, due to Plaintiff’s failure to comply with the notice of

11

claim statute. Under Arizona law, Defendants Maricopa County and Arpaio can never be

12

held vicariously liable for their employees’ official conduct. See Orlando, 2009 Ariz.

13

App. Unpub. LEXIS 143, at *3 (if the claims against the employee are dismissed with

14

prejudice, then “an action against the employer based solely upon the doctrine of

15

vicarious liability” is barred). To allow Plaintiff to “continue to assert claims for

16

vicarious liability against the County” and Defendant Arpaio, even in light of the

17

dismissal with prejudice of the individual Defendants, then Plaintiff’s “failure to comply

18

with the Notice statute as to [the individual Defendants] would be excused, which would

19

not be consistent with Arizona law that treats the Notice statute as ‘mandatory.’” Nixon,

20

2014 U.S. LEXIS 116009, at *6-7 (quoting Salerno, 115 P.3d at 628). As Plaintiff cannot

21

cure the problem with her state law claims against Defendants Maricopa County and

22

Arpaio premised on a theory of respondeat superior/vicarious liability, they must be

23

dismissed as well.11

24

Likewise, a 42 U.S.C. § 1983 claim cannot serve as the basis for a respondeat

25
26
27
28

11

The Court is not persuaded by Plaintiff’s argument that Johnson, 763 P.2d at
1385, mandates that the respondeat superior claims be allowed to proceed. Johnson
analyzed the predecessor statute to A.R.S. § 821.01, and held that the notice of claim
statute required that a prospective plaintiff furnish a Notice on both the employer and the
employee. Id. at 1384.
- 19 -

1

superior/vicarious liability claim, and must be dismissed as well. Strickler v. Arpaio, No.

2

CV-12-1344-PHX-GMS, 2012 U.S. Dist. LEXIS 117727, at *14 (D. Ariz. Aug. 21,

3

2012); Roundtree v. Adams, 2005 U.S. Dist. LEXIS 40517, at *23 (E.D. Cal. Dec. 1,

4

2005) (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981)).

5

Finally, the TAC’s § 1983 claims alleged against Defendants Cormier, Garcia,

6

Hewitt, Johnson, Smith, and Wade must be dismissed for failure to allege a facially

7

plausible claim of relief.

8
9

V.

10

Accordingly,

11

/

12

/

13

/

14

/

15

/

16

/

17

/

18

/

19

/

20

/

21

/

22

/

23

/

24

/

25

/

26

/

27

/

28

/

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1

IT IS ORDERED that Defendants’ Motion to Dismiss, (Doc 15), is GRANTED.

2

IT IS FURTHER ORDERED that Count One’s claim for negligence is

3
4
5

DISMISSED.
IT IS FURTHER ORDERED that Defendant Ryan Bates is dismissed from this
matter for failure to execute service of process under Fed. R. Civ. P. 4(m).

6

IT IS FURTHER ORDERED that any and all state law claims against

7

Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt, Hovanec, Huber, Johnson, Smith,

8

and Wade are DISMISSED.

9

IT IS FURTHER ORDERED that any claims against Defendants Arpaio and

10

Maricopa County based on a theory of respondeat superior/vicarious liability are

11

DISMISSED.

12
13

IT IS FURTHER ORDERED that Count Two, with respect to Defendants
Cormier, Garcia, Hewitt, Johnson, Smith, and Wade is DISMISSED.

14

IT IS FURTHER ORDERED that with no viable claims against them remaining

15

in the TAC, Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade are

16

DISMISSED from this matter.

17

Dated this 25th day of July, 2016.

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