Wostrel v. Arizona, State of et al

Filing 127

ORDER granting 115 Motion to Dismiss Counts/Claims. Claims 1, 6, and 7 of the second amended complaint are dismissed as to Defendants Diaz, Kaplan, and Adams. Signed by Senior Judge Douglas L Rayes on 9/26/24. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Aaron Wostrel,
Plaintiff,

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v.

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State of Arizona, et al.,

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No. CV-22-00312-PHX-DLR
ORDER

Defendants.

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This lawsuit arises from the State of Arizona’s removal of Minor Plaintiffs from

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their mother’s custody, and the ensuing dependency action. The Court previously issued

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an order that granted, in whole or in part, several motions to dismiss filed by the various

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Defendants. (Doc. 75.) The Court detailed the relevant background in that order and will

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not do so again here, as the parties are familiar with the facts.

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After the Court dismissed portions of Plaintiffs’ previous complaint, they filed a

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second amended complaint (“SAC”) ostensibly to conform their pleading to the Court’s

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dismissal order. (Doc. 95; see also Doc. 93 at 2 (“The parties agree a further amended

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complaint to conform to the Court’s rulings . . . would be beneficial to the Court and the

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remaining Defendants in preparing their responsive pleadings.”). As it turns out, however,

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that SAC fails in several respects to conform to the Court’s prior orders and, despite

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multiple conferral efforts, the parties were unable to agree to a resolution. State

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Defendants’ therefore have moved to partially dismiss the SAC to remove those portions

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it believes fail to faithfully conform to the Court’s prior rulings. (Doc. 115.) Specifically,

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State Defendants ask the Court to “to dismiss: (1) supervisors Diaz, Kaplan, and Adams

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from federal claims 1, 6, and 7 because supervisory liability is not actionable under 42

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U.S.C. § 1983, (2) former Director McKay from claim 11 for failure to serve a notice of

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claim, and (3) claim 7 as to Aaron Wostrel.” (Id. at 1.)

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In response, Plaintiffs voluntarily dismissed former Director McKay (Doc. 119) and

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concede that claim 7 is asserted only against Defendant Platter and not against State

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Defendants, even though the SAC’s heading for claim 7 names State Defendants as well

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as Platter (Doc. 120 at 15; Doc. 95 at 46).1 The Court admonishes Plaintiffs to take more

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seriously their conferral obligations under this Court’s March 11, 2022, order (Doc. 15)

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and Local Rule of Civil Procedure 12.1(c). Good-faith conferral should have resulted in an

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amended pleading that dealt with these apparent non-issues before State Defendants

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expended resources briefing them.

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In light of Plaintiffs’ concessions, the only contested issue is whether the Court

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should dismiss the § 1983 claims against Defendants Diaz, Kaplan, and Adams. The issue

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of supervisory liability under § 1983 was fully briefed when State Defendants moved to

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dismiss an earlier iteration of Plaintiffs’ complaint. In its order resolving that motion, the

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Court explained:

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Government officials cannot be held liable under § 1983 for
actions of their subordinates merely on a theory of respondeat
superior. [Ashcroft v.] Iqbal, 556 U.S. [662,] at 676 [(2009)].

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In response to State Defendants’ arguments regarding claim 7, Plaintiffs argue:
“State Defendants assert that all of Aaron’s federal claims against State Defendants were
dismissed as time-barred except for his claims regarding medical decisions and treatment.
See Mot. at 8:10-11. However, Aaron’s Claim 7 (formerly Claim 11 in the FAC) against
State Defendants was dismissed based on statute of limitations ground but his claim against
Defendant Platter for her out-of-court actions survived. See (Doc. 75 at 13:22-14:3).
Therefore, Aaron’s Claim 7 against Platter should not be dismissed.” (Doc. 120 at 15.)
Platter, however, is not among the movants. Only State Defendants have moved to partially
dismiss the SAC. Plaintiffs make no argument that claim 7 should be resurrected as to State
Defendants and appear to acknowledge that the claim is now being pursued only against
Platter consistent with the Court’s prior order. Yet, in the next paragraph, Plaintiffs state:
“Aaron’s Claim 7 must remain, at least as to Defendant Platter.” (Id. (emphasis added).).
Given the Court’s prior order dismissing claim 7 as to the State Defendants and Plaintiffs’
failure to raise any argument for resurrecting that claim now, “at least” should read “at
most.” The Court reads Plaintiffs’ response the same way as the State Defendants do—
Plaintiffs are only pursuing this claim against Platter.
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Instead, a plaintiff must allege that a supervisor “set[] in
motion a series of acts by others which the actor knows or
reasonably should know would cause others to inflict the
constitutional injury.” McRorie v. Shimoda, 795 F.2d 780, 783
(9th Cir. 1986). And to establish intent, “knowing
acquiescence” is not enough. OSU Student All. v. Ray, 699 F.3d
1053, 1071 (9th Cir. 2012).

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(Doc. 75 at 12.) The Court concluded:
The sole specific, factual allegations against Long are that he
“approved” two progress reports that Plaintiffs allege
contained false information or omitted material information.
(Doc. 38 ¶¶ 167, 401.) Neither allegation suggests that Long
knew or reasonably should have known that the report
contained the false or omitted information or that the report’s
submission would cause a constitutional injury. As such, both
allegations against Long arise under a respondeat superior
theory and cannot ground liability under § 1983.

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(Id. at 12-13.)

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The crux of State Defendants’ partial motion to dismiss is that the SAC fails to

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conform to the Court’s prior ruling because it attempts to assert § 1983 claims against Diaz,

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Kaplan, and Adams based on allegations that are materially indistinguishable from those

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the Court previously found insufficient to support such claims against Long. The Court

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agrees.

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First, Diaz. The SAC merely alleges that Diaz supervised Gattie, and that Platter

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conferred with Diaz and others after being assigned as the State’s Advocate in the

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dependency case. (Doc. 95 ¶¶ 56, 161.) These vague allegations do not plausibly show that

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Diaz set in motion a series of acts by others that she knew or reasonably should have known

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would cause others to inflict constitutional injuries on Plaintiffs.

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Second, Kaplan. The SAC alleges only that Kaplan approved an August 2, 2017,

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addendum report that Kelly submitted to the juvenile court, and that this report contained

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inaccurate information. (¶¶ 341-43.) These allegations are materially indistinguishable

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from those the Court found insufficient as to Long.

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Finally, Adams. The only specific allegation against Adams is that he approved an

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addendum report that was prepared and submitted to the court by Long and that this report

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contained false information. (¶ 350.) This allegation is materially indistinguishable from

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those the Court found insufficient to support claims against Long. The SAC also alleges

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that Platter conferred with Adams and others after being assigned as the State’s Advocate

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in the dependency case. (¶ 161.) But this vague allegation does not plausibly show that

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Adams set in motion a series of acts by others that he knew or reasonably should have

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known would cause others to inflict constitutional injuries on Plaintiffs.

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For these reasons,

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IT IS ORDERED that State Defendants’ partial motion to dismiss the second

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amended complaint (Doc. 115) is GRANTED. Claims 1, 6, and 7 of the second amended

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complaint are dismissed as to Defendants Diaz, Kaplan, and Adams.

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Dated this 26th day of September, 2024.

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Douglas L. Rayes
Senior United States District Judge

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