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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WO 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Shari Ferreira, et al., No. CV-15-01845-PHX-JAT Plaintiffs, 10 11 v. 12 ORDER Joseph M Arpaio, et al., 13 Defendants. 14 15 Pending before the Court is Defendants’1 Motion to Dismiss, (Doc. 15), brought in 16 response to Plaintiff Shari Ferreira’s Third Amended Complaint (“TAC”), filed on 17 December 2, 2015. (Doc. 12). The motion has been fully briefed, and oral argument was 18 heard on July 20, 2016. The Court now rules on the motion. 19 I. 20 21 The Court need not set forth a full recitation of the facts underlying this matter. 22 For purposes of adjudicating Defendants’ pending Federal Rule of Civil Procedure 12 23 (b)(6) motion, a brief recital of the following facts—taken as true from the TAC—is 24 25 26 27 28 1 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. 1 sufficient. Plaintiff brought this civil rights action on behalf of decedent Zachary 2 Daughtry in her capacity as personal representative of the estate. (Doc. 12 at 1). Daughtry 3 was initially arrested on December 12, 2013, and booked into the 4th Avenue Jail 4 complex. (Id. at 8). Over the following months, Daughtry “had several assignments and 5 transfers” to different facilities, but was ultimately transferred back to the 4th Avenue Jail 6 on July 6, 2014. (Id.). Between his initial booking and July 6, Daughtry had been referred 7 to “Psychiatric Services” on several occasions in light of “medical and mental health 8 issues that required ongoing medical and psychological treatment.” (Id.). 9 On July 9, 2014, fellow inmate Defendant Ryan Bates2 was placed in a cell with 10 Daughtry after Bates was discovered in a restricted area of the 4th Avenue Jail. (Doc. 12 11 at 9 ¶ 42-43). At approximately 2200 hours, officers were “escorting medical personnel 12 and conducting a general headcount,” and passed by Daughtry’s cell. (Id. at 12 ¶ 67). 13 When the officers passed by, they observed Bates standing over Daughtry, who was 14 unresponsive and visibly bleeding from the head and face. (Id.). Daughtry received 15 medical treatment on-site, and was subsequently transported to Banner Good Samaritan 16 Hospital “with life threatening injuries.” (Id. at 12-13). Daughtry suffered “multiple facial 17 fractures, major head injuries including orbital fractures, nose fractures, a broken jaw, 18 internal injuries, a subdural hematoma to the brain with brain bleed, and severe 19 lacerations to his head and left ear.” (Id. at 13). On July 20, 2014, Daughtry passed away 20 from his injuries. (Id. at 15 ¶ 76). 21 This matter, initially brought in Maricopa County Superior Court, was removed on 22 September 16, 2015. (Doc. 1). The Complaint, thrice amended, alleges claims of 23 negligence, gross negligence, wrongful death, and constitutional violations under Title 42 24 U.S.C. § 1983 (2012). On December 21, 2015, Defendants filed the pending motion to 25 dismiss. The motion has been fully briefed, (Docs. 15, 34, 38), and oral argument was 26 2 27 28 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. -2- 1 heard on July 20, 2016. Having set forth the pertinent factual and procedural background, 2 the Court turns to Defendants’ motion. 3 4 II. 5 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 6 meet the requirements of Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) requires a “short and plain 7 statement of the claim showing that the pleader is entitled to relief,” so that the defendant 8 has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 9 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 10 (1957)). A complaint must also contain sufficient factual matter, which, if accepted as 11 true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 12 678 (2009). Facial plausibility exists if the pleader sets forth factual content that allows 13 the court to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged. Id. Plausibility does not equal “probability,” but requires more than a sheer 15 possibility that a defendant acted unlawfully. Id. “Where a complaint pleads facts that are 16 ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between 17 possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 18 557). 19 Although a complaint attacked for failure to state a claim does not need detailed 20 factual allegations, the pleader’s obligation to provide the grounds for relief requires 21 “more than labels and conclusions, and a formulaic recitation of the elements of a cause 22 of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Rule 8(a)(2) 23 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief,” as 24 “[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could 25 satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but 26 also ‘grounds’ on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A. Wright & 27 Arthur R. Miller, Federal Practice & Procedure § 1202, pp. 94, 95 (3d ed. 2004)). Thus, 28 -3- 1 Rule 8’s pleading standard demands more than “an unadorned, the-defendant-unlawfully- 2 harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 3 The Court must construe the facts alleged in the complaint in the light most 4 favorable to the drafter and must accept all well-pleaded factual allegations as true, 5 Shwarz, 234 F.3d at 435, Cafasso, 637 F.3d at 1053, but need not accept as true legal 6 conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). 7 III. 8 9 Defendants’ motion, (Doc. 15), asserts several grounds for dismissal, contending 10 that: (1) Defendants cannot be held liable for mere negligence pursuant to A.R.S. § 12- 11 820.02 (A)(4); (2) Plaintiff failed to name or serve certain Defendants with a Notice of 12 Claim (“Notice”), as required by A.R.S. § 12-821.01; and (3) the TAC fails to state a 13 plausible claim against certain Defendants. The Court will address each of the arguments 14 in turn.3 15 16 A. Plaintiff’s Negligence Claim 17 Count One of the TAC asserts a claim of “[g]ross [n]egligence and [n]egligence 18 against [a]ll Defendants.” (Doc. 12 at 16). “A.R.S. § 12-820.02 (A)(4) requires a showing 19 of ‘gross negligence’ in order for a public entity or employee to be liable for ‘an injury 20 caused by a prisoner to any other prisoner.’” Murphy v. County of Yavapi, No. CV-04- 21 1861-PCT-DGC, 2006 U.S. Dist. LEXIS 63732, at *21-22 (D. Ariz. Aug. 23, 2006) 22 (citation omitted). A.R.S. § 12-820 (5) defines “prisoner” as “a person incarcerated while 23 awaiting sentence or while serving a sentence imposed by a court of law.” 24 25 26 27 28 3 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). -4- 1 Plaintiff does not contend that Defendant Bates’ and Daughtry’s status is anything 2 other than “prisoner” as defined by the statute, and “do[es] not contest that, for purposes 3 of [the] state law claims for relief, the appropriate standard of culpability is that of gross 4 negligence.” (Doc. 34 at 10) Accordingly, to the extent the TAC alleges a claim of 5 negligence against Defendants, it is hereby dismissed, with prejudice. 6 7 B. Compliance with A.R.S. § 12-821.01 8 The motion next argues that Defendants Alvarez, Cormier, Garcia, Hansen, 9 Hewitt, Hovanec, Huber, Johnson, Smith, and Wade were not named in, or served with a 10 Notice, as is required by A.R.S. § 12-821.01. (Doc. 15 at 8-10). Defendants further assert 11 that because the state law claims are barred for failure to comply with the notice of claim 12 statute, all vicarious liability claims asserted against Defendants Arpaio and Maricopa 13 County also fail.4 (Doc. 38 at 8). 14 The Court must first address whether it may entertain Defendants’ argument, 15 which relies on documentary evidence outside of the TAC. On a motion to dismiss for 16 failure to state a claim, the scope of review is generally “limited to the contents of the 17 complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citing Warren v. Fox 18 Family Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003)). However, the Court 19 may also consider any evidence upon which the complaint “necessarily relies,” which is 20 satisfied where: “(1) the complaint refers to the document; (2) the document is central to 21 the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to 22 the 12(b)(6) motion.” Id. (citing Branch v. Tunnell, 449, 453-54 (9th Cir. 1994), 23 overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th 24 Cir. 2002)). Having reviewed the TAC and the Notice attached to Defendants’ motion, 25 (Doc. 15-1 at 2), the Court finds that the TAC necessarily relies on the Notice. 26 First, the TAC explicitly refers to the document, as it alleges that “Plaintiff 27 28 4 The Court will address this particular argument infra, in Section IV of the Order. -5- 1 satisfied the provisions of A.R.S. § 12-821.01 by serving a notice of claim more than 60 2 (sixty) days prior to the date of the filing of this complaint,” and that certain “Defendants 3 denied the claim” while “[o]ther [D]efendants have not responded to the notice of claim.” 4 (Doc. 12 at 4). Second, the Notice is central to Plaintiff’s claim. As discussed fully infra, 5 Arizona law mandates that any person who has a claim against a public employee must 6 file a Notice prior to filing suit. A.R.S. § 12-821.01 (A). Failure to strictly comply with 7 the statute’s requirements results in preclusion of a plaintiff’s claims. Simon v. Maricopa 8 Med. Ctr., 234 P.3d 623, 631 (Ariz. Ct. App. 2010). The importance the Arizona 9 legislature has placed on compliance coupled with the harsh penalty for noncompliance 10 make this procedural prerequisite central to Plaintiff’s civil rights claims against public 11 employees. Finally, neither party questions the authenticity of the Notice attached to 12 Defendants’ motion. Accordingly, the TAC necessarily relies upon the Notice, and may 13 consider it. See Mitchell v. City of Flagstaff, CV 11-8140-PCT-FJM, 2011 U.S. Dist. 14 LEXIS 133766, at *3 (D. Ariz. Nov. 18, 2011) (considering a Notice in adjudicating a 15 Rule 12(b)(6) motion to dismiss). 16 As noted supra, prior to filing suit in state or federal court, Arizona law requires 17 that “[p]ersons who have claims against a . . . public employee shall file claims with the 18 person or persons authorized to accept service for the . . . public employee as set forth in 19 the Arizona rules of civil procedure.” A.R.S. § 12-821.01 (A); Simon, 234 P.3d at 629. 20 The Notice must be submitted “within one hundred eighty days after the cause of action 21 accrues,” and must contain a statement of the facts that establish the basis for liability and 22 an amount for which the claim can be settled. A.R.S. § 12-821.01 (A). This allows “the 23 public entity to investigate and assess liability, permit the possibility of settlement prior 24 to litigation, and to assist the public entity in financial planning and budgeting.” 25 Martineau v. Maricopa County, 86 P.3d 912, 915-16 (Ariz. Ct. App. 2004). Accrual of a 26 cause of action occurs “when the damaged party realizes he or she has been damaged and 27 knows or reasonably should know the cause, source, act, instrumentality or condition that 28 caused or contributed to the damage.” A.R.S. § 12-821.01 (B). -6- 1 “[S]trict compliance with A.R.S. § 12-821.01 (A) is required.” Simon, 234 P.3d at 2 629 (citing Falcon ex. rel. Sandoval v. Maricopa County, 144 P.3d 1254, 1256 (Ariz. 3 2006)). “Substantial compliance” is insufficient, even if the defendants have “actual 4 notice of the claim.” Id. (citation omitted). Should a plaintiff fail to file a Notice within 5 the statutory time limit, her “claim is barred by statute.” Falcon, 144 P.3d at 1256 (citing 6 Salerno v. Espinoza, 115 P.3d 626, 629 (Ariz. Ct. App. 2005)); see also Crum v. Superior 7 Court, 922 P.2d 316, 317 (Ariz. Ct. App. 1996) (failure to include all claims and a 8 settlement amount in the Notice resulted in preclusion). 9 Plaintiff’s TAC alleges claims against Maricopa County, Maricopa County Sheriff 10 Joeseph M. Arpaio, M.D. Alvarez, and Deputy Sheriffs Cormier, Hewitt, Hovanec, 11 Huber, Hansen, Johnson, Wade, Smith and Garcia. The TAC refers to the individually 12 named Deputy Sheriffs and M.D. Alvarez as employees of either Maricopa County or 13 Maricopa County Sheriff Joeseph Arpario. (Doc. 12 at 3-5). Arizona courts have 14 repeatedly held that to comply with Arizona’s notice of claim statute, a prospective 15 plaintiff must furnish a copy of the Notice on “both the employee individually and to his 16 employer.” Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007) 17 (citation omitted); Hendershott v. Babeu, 2015 Ariz. App. Unpub. LEXIS 372, at *11 18 (Ariz. Ct. App. March 24, 2015) (citation omitted); Dana v. City of Yuma, 2011 Ariz. 19 App. Unpub. LEXIS 1085, at *14 (Ariz. Ct. App. Aug. 16, 2011); Dimmig v. Pima 20 County, 2009 Ariz. App. Unpub. LEXIS 1520, at *5 (Ariz. Ct. App. Oct. 27, 2009); 21 Havasupai Tribe v. Ariz. Bd. of Regents, 204 P.3d 1063, 1080 (Ariz. Ct. App. 2008); 22 Valenzuela v. City of Phoenix Police Dep’t, 2007 Ariz. App. Unpub. LEXIS 885, at *3 23 (Ariz. Ct. App. Dec. 31, 2007); Crum, 922 P.2d at 317; see also Johnson v. Superior 24 Court, 763 P.2d 1382, 1384 (Ariz. Ct. App. 1988) (recognizing that under the 25 predecessor statute a claimant “must give notice of the claim to both the employee 26 individually and to his employer”). 27 Having reviewed the record in its entirety, the Court finds no evidence that 28 Plaintiff filed a Notice with the individually named employee Defendants in this lawsuit. -7- 1 Even accepting Plaintiff’s assertion that she did not know of the individual Defendants’ 2 conduct and identities until April of 2015, (Doc. 34 at 10), Plaintiff has never filed a 3 Notice with any individual employee Defendant. Thus, even if the cause of action that 4 forms the basis for this lawsuit did not accrue until April of 2015 under A.R.S. § 12- 5 821.01 (B), the 180 day time limit would have run at some point in October of 2015. 6 Plaintiff asserts that she filed a timely Notice on January 5, 2015. (Doc. 34 at 8). There is 7 no evidence in the record to support this claim. The only Notice present in the record— 8 and Plaintiff does not contend that more exist—is the January 5, 2015, Notice filed 9 against “Maricopa County And/Or Maricopa County Sheriff.” (Doc. 15-1 at 2). The fact 10 that the Notice fails to identify even a single individual responsible for the allegedly 11 tortious or unconstitutional actions cripples any argument that a timely Notice was served 12 on the aforementioned Defendants. 13 Moreover, even if the Court were to consider this as a Notice served on the 14 individual employee Defendants, the Arizona Court of Appeals has held that Plaintiff’s 15 efforts are insufficient. In Harris, the plaintiff served a Notice on Cochise County, and 16 the Notice referred to an individual defendant “as the statutory agent,” but failed to refer 17 to her at all in the body of the Notice, and did not make any demand for money or 18 settlement upon her. 160 P.3d at 230. Rather, the body of the Notice “repeatedly refer[ed] 19 to ‘CHS officials,’ but d[id] not once name [the individual].” Id. Thus, “nothing exist[ed] 20 in the notice that would have alerted the [individual] to the fact that a claim was being 21 asserted against her,” and the “most she could expect to glean from this notice is that as 22 [the entity’s] statutory agent, she must receive process for it and forward it to the 23 principal.” Id. The instant action is nearly identical, except Plaintiff failed to name any of 24 the individual employee Defendants as “statutory agents” in the Notice. It follows that 25 even accepting Plaintiff’s efforts to date, they fail as a matter of law.5 26 27 28 5 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. -8- 1 In sum, the record establishes that Plaintiff failed to serve a Notice on the 2 individually named employee Defendants. Plaintiff cannot rely on “excusable neglect,” as 3 the doctrine no longer relieves a plaintiff of compliance. See Lee v. State, 182 P.3d 1169, 4 1179 (Ariz. 2008) (noting that the Arizona legislature terminated this exception when it 5 amended the notice of claim statute). “Any claim which is not filed within one hundred 6 eighty days after the cause of action accrues is barred and no action may be maintained 7 thereon.” Crum, 922 P.2d at 317 (citing A.R.S. § 12-821.01). Strict compliance is 8 mandatory. Simon, 234 P.3d at 629 (citation omitted). Plaintiff has failed to comply, and 9 her state law claims against Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt, 10 Hovanec, Huber, Johnson, Smith and Wade are therefore barred. 11 12 C. The Validity of Plaintiff’s Pleaded § 1983 Claims6 13 Turning to Plaintiff’s federal claims, Defendants assert that Plaintiff’s § 1983 14 claims against Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade must be 15 dismissed for failure to state a plausible claim of relief. (Doc. 15 at 4-8). “Jail officials 16 have a duty to protect inmates from violence at the hands of other inmates.” Murphy, 17 2006 U.S. Dist. LEXIS 63732, at *16 (citing Hearns v. Terhune, 413 F.3d 1036, 1040 18 (9th Cir. 2005)). The failure of jailers to protect the inmate population from the attacks by 19 other inmates may result in a violation of the victim’s constitutional rights where “(1) the 20 deprivation alleged is ‘objectively, sufficiently serious’ and (2) the prison officials had a 21 22 23 24 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. 6 25 26 27 28 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. -9- 1 ‘sufficiently culpable state of mind,’ acting with deliberate indifference.” Hearns, 413 2 F.3d at 1040 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “Deliberate 3 indifference is a high legal standard,” higher than negligence, Hallett v. Morgan, 296 4 F.3d 732, 744 (9th Cir. 2004) (citation omitted), and even gross negligence. Wood v. 5 Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). But it is “satisfied by something less 6 than acts or omissions for the very purpose of causing harm or with knowledge that harm 7 will result.’” Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. at 835) (alterations 8 omitted). 9 Plaintiff’s opposition brief to the pending motion includes a number of factual 10 assertions not contained in the TAC. (Doc. 34 at 2-4, 5). The Court may not, and will not 11 consider them in its analysis. Frenzel v. Aliphcom, 76 F. Supp. 3d 999, 1009 (N.D. Cal. 12 2014) (citations omitted) (it is “axiomatic that the complaint may not be amended by the 13 briefs in opposition to a motion to dismiss”). The Court’s review of the facts will be 14 restricted to those pleaded in the TAC. 15 16 1. 17 The TAC names Defendant Deputy Sheriff Sergeant Garcia as an “employee[] of 18 the Maricopa County Sheriff’s Office, (Doc. 1 at 3 ¶ 7), and alleges that he was “on duty 19 on July 9, 2014[,] at the 4th Avenue Jail.” (Id. at 5 ¶ 15). Beyond these two instances, the 20 TAC is bereft of any factual allegations relating to Defendant Garcia. Plaintiff simply 21 asserts that “[t]he wrongful conduct of [D]efendants, and each of them, as alleged herein 22 under color of State law, constitute violations of the United States Constitution . . . .” (Id. 23 at 20 ¶ 107). Plaintiff’s theory of recovery centers on Defendants’ failure to protect 24 Daughtry by placing Bates in the same cell as Daughtry. 7 None of the pleaded facts in the Defendant Garcia 25 26 27 28 7 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 - 10 - 1 TAC place Defendant Garcia anywhere near this action, much less allege that Garcia 2 made the decision to place Bates in Daughtry’s cell, that he participated in placing Bates 3 in Daughtry’s cell, or that he knew Bates had been placed in the cell and failed to act. In 4 sum, taking all pleaded facts in the TAC as true, and reading them in the light most 5 favorable to Plaintiff, the TAC fails to allege a plausible claim of relief against Defendant 6 Garcia. 7 Plaintiff’s brief opposes the motion on two grounds.8 Plaintiff first argues that 8 “under well-established Ninth Circuit case law, each individual that participates in a 9 group-based violation of a constitutional right is responsible for the harm caused by the 10 violation.” (Doc. 34 at 6). But “[a]n officer’s liability under section 1983 is predicated on 11 his ‘integral participation’ in the alleged violation” which requires “some fundamental 12 involvement in the conduct that allegedly caused the violation.” Blankenhorn v. City of 13 Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (quoting Chuman v. Wright, 76 F.3d 292, 14 294-95 (9th Cir. 1996)). Here, the pleaded facts fail to even suggest that Defendant 15 Garcia was in the vicinity of the alleged violations, and fail to establish that Defendant 16 Garcia was an integral participant in the actions that led to Daughtry’s death. 17 Plaintiff’s brief next argues that she is at an “informational disadvantage,” and that 18 dismissing Defendant Garcia at this stage, without discovery, “would be premature in 19 light of . . . longstanding” doctrine. (Doc. 34 at 6). Plaintiff relies on Alston v. Parker, 20 363 F.3d 229, 233 n.6 (3d Cir. 2004), in part,9 a case in which the Third Circuit discussed 21 22 23 24 25 26 27 28 on July 9, 2014. 8 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. 9 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 - 11 - 1 the no longer viable “no set of facts” pleading standard, noting that a plaintiff “need not 2 plead facts” but “only make out a claim upon which relief can be granted.” Id. The Court 3 went on to recognize that in certain cases, pro se prisoners pursuing civil rights actions 4 may need discovery to determine “identities and roles of relevant actors” as “owing to 5 their incarceration or institutionalization, [they are] unable to conduct pre-trial 6 investigation to fill in the gaps.” Id. 7 The Court finds that no informational disadvantage exists that is substantial 8 enough to justify leniency with respect to Rule 8’s pleading standards. Unlike the 9 plaintiff in Alston, Plaintiff here has been represented by counsel throughout this matter. 10 Moreover, Plaintiff’s own opposition asserts that she “could not have known of the 11 individual Defendants’ conduct until April of 215, when Defendants finally released the 12 investigation” they conducted to Plaintiff, (Doc. 34 at 10), nearly eight months prior to 13 filing the TAC. Finally, the court in Alston made it clear that its focus was to address the 14 institutional barriers that exist for pro se prisoners who do not have access to counsel and 15 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. - 12 - 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. - 13 - 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 - 14 - 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. - 15 - 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 - 16 - 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 - 17 - 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 / - 20 - 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. 18 19 20 21 22 23 24 25 26 27 28 - 21 -

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