Jackson v. Mesa Community College et al
Filing
69
ORDER: IT IS ORDERED that Plaintiff's motion for reconsideration (Doc. 68 ) is denied [see attached Order for details]. Signed by Judge Dominic W Lanza on 11/18/21. (MAW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Darlene Jackson,
Plaintiff,
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ORDER
v.
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No. CV-20-01869-PHX-DWL
Mesa Community College, et al.,
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Defendants.
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Pending before the Court is pro se Plaintiff Darlene Jackson’s motion for
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reconsideration of the Court’s October 29, 2021 order dismissing her fourth amended
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complaint (“FAC”) without leave to amend. (Doc. 68.) For the following reasons, the
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motion is denied.
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Motions for reconsideration are disfavored and should be denied “absent a
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showing of manifest error or a showing of new facts or legal authority that could not have
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been brought to [the Court’s] attention earlier with reasonable diligence.” LRCiv. 7.2(g).
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Reconsideration is an “extraordinary remedy” that is available only in “highly unusual
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circumstances.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)
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(citations omitted).
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Plaintiff seeks reconsideration of the portion of the Court’s order dismissing her
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§ 1983 claim. (Doc. 68 at 2.) This claim was brought against only one defendant, Mesa
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Community College (“MCC”). (Doc. 61 at 39.) The Court concluded that there were no
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allegations in the FAC “that the MCC officials at issue were acting pursuant to an official
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policy, practice, or custom or were officials with final policy-making authority.” (Doc.
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66 at 13.) Plaintiff argues that this conclusion was manifest error because the FAC
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“shows a pattern of conduct in which the Defendants, during two discrimination
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complaints filed by Plaintiff, did not adhere to [Maricopa County Community College
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District (“MCCCD”)] Discrimination Compliant [sic] Procedures For Students, which
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were in place to prevent discrimination in education and eradicate the hostile
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environment it promotes.” (Doc. 68 at 2.) Plaintiff asserts that “Defendants’ actions
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show a pattern of conduct that may infer a custom violation” (id.), relying on Shaw v.
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State of California Dep’t of Alcoholic Beverage Control, 788 F.2d 600 (9th Cir. 1986).
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As the Ninth Circuit explained in Shaw:
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Municipalities, their agencies, and their supervisory personnel cannot be
held liable under section 1983 on a theory of respondeat superior. They
can, however, be held liable for deprivations of constitutional rights
resulting from their policies or customs. The plaintiffs need not specifically
allege a custom or policy; it is enough if the custom or policy can be
inferred from the allegations of the complaint.
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788 F.2d at 610 (internal citations omitted).
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In Shaw, the plaintiffs, who owned and operated a bar, sued the city and police
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department, alleging that “for a period of almost four years San Jose police officers
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entered the bar as many as 18 times a shift, repeatedly brought police officers from other
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jurisdictions into the bar, attempted on more than one occasion to persuade the Shaws’
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employees to quit, tried more than once to dissuade customers from entering the bar, and
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arranged for multiple regulatory inspections by other City agencies . . . because the
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Shaws are black,” whereas “other bars, owned by whites, were not treated in the same
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manner.”
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established “a pattern or a series of incidents” of unconstitutional discrimination
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“sufficient to withstand a motion to dismiss.” Id.
Id.
The Ninth Circuit had no trouble concluding that these allegations
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Shaw is distinguishable from the facts at hand. The “pattern” or “series” of
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incidents in Shaw included four years of varied incidents, some of which apparently
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occurred many times each day (“18 times a shift”). Id. Here, the discriminatory conduct
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Plaintiff alleges—receiving consequences as a result of tardiness, in contrast to apparent
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leniency toward one non-black tardy student—occurred twice, within a short time span.
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This is insufficient to establish the existence of “a deliberate policy, custom, or practice
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that was the moving force behind the [alleged] constitutional violation.” AE ex rel.
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Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). See Segal v. Los Angeles
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Cty., 852 F.2d 1290 (9th Cir. 1988) (“While a single decision by a municipal policymaker
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may sometimes satisfy Monell’s municipal policy requirement, the acting official must be
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directly responsible for establishing final government policy on the activity involved and
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not just have discretion in carrying out his duties. In contrast to Pembaur, this case
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showed only spontaneous decisions made, not by authorized policymakers, but rather by
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. . . employees of the county. Thus, Segal cannot rely solely on the specific facts of this
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case but must produce some evidence of a county policy . . . .”); Pembaur v. City of
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Cincinnati, 475 U.S. 469, 481-83 (1986) (“Municipal liability attaches only where the
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decisionmaker possesses final authority to establish municipal policy with respect to the
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action ordered. The fact that a particular official—even a policymaking official—has
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discretion in the exercise of particular functions does not, without more, give rise to
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municipal liability based on an exercise of that discretion. The official must also be
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responsible for establishing final government policy respecting such activity before the
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municipality can be held liable. . . . We hold that municipal liability under § 1983
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attaches where—and only where—a deliberate choice to follow a course of action is
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made from among various alternatives by the official or officials responsible for
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establishing final policy with respect to the subject matter in question.”).
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To the extent that Plaintiff argues that the investigations into her complaints did
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not adhere to the official policy as to how such investigations should be conducted,
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Plaintiff has not alleged that the failure to adhere to this policy was race-based
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discrimination or that investigations into complaints made by non-black students are
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conducted differently. Moreover, the allegation that an official policy exists—and that
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individuals (who are not policymakers) failed to adhere to this official policy and that this
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nonadherence was discriminatory—undermines Plaintiff’s argument that MCC should be
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held liable.
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intended to distinguish acts of the municipality from acts of employees of the
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municipality, and thereby make clear that municipal liability is limited to action for
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which the municipality is actually responsible. Monell reasoned that recovery from a
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municipality is limited to acts that are, properly speaking, acts ‘of the municipality’—that
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is, acts which the municipality has officially sanctioned or ordered.”).
Pembaur, 475 U.S. at 479-80 (“The ‘official policy’ requirement was
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Accordingly,
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IT IS ORDERED that Plaintiff’s motion for reconsideration (Doc. 68) is denied.
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Dated this 18th day of November, 2021.
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