Tucker v. Arizona Department of Corrections et al

Filing 41

ORDER that the Motion to Dismiss for Failure to State a Claim (Doc. 20 ) is GRANTED. Counts One through Nine, Twenty-Seven, and Twenty-Eight against the State, ADC, and Ryan, along with Counts Nine through Twenty-Six against individually named de fendants, are DISMISSED. ADC and the claims against it are DISMISSED. Counts One through Eight against the State, ADOC, and Ryan are DISMISSED. Counts One through Eight are DISMISSED as being banned by the statute of limitations. Counts Nine, Eight een and Nineteen are DISMISSED as non-cognizable claims. Counts Ten through Seventeen and Twenty through Twenty- Six are DISMISSED for failure to state claim upon which relief may be granted. Counts Twenty-Seven and Twenty-Eight are DISMISSED for f ailing to allege a causal link between Defendant and the claimed violations. The claim for punitive damages is DISMISSED. The SAC and this action are DISMISSED. The Motion to Conduct Discovery Prior to the Time Specified in the Rule 26(d) and Requ est Leave of the Court to Extend the Time to Serve Unknown Defendant John Doe and Dismiss Defendants Jane Does (1-10) without Prejudice (Doc. 27 ) is DENIED AS MOOT. The Motion for Leave of the Court to Attach Audio Recording as an Exhibit to Pla intiff's Response to State Defendants' Motion to Dismiss (Doc. 29 ) is DENIED. The Request Leave of the Court for an Order to extend Deadline to File Response to State Defendants' Motion to Dismiss (Doc. 34 ) is DENIED. The Motio n for Ruling on State Defendants' Sovereign Immunity Defense (Doc. 36 ) is GRANTED to the extent the Court herein rules on State Defendants' Sovereign Immunity Defense. The Motion to Deem Plaintiffs' Motion for Ruling as Response t o Defendants' Motion to Dismiss; Motion to Extend Time to Reply if Plaintiffs' Motion Deemed a Response; Motion for Plaintiffs to Comply with Court Rules (Doc. 38 ) is GRANTED IN PART AND DENIED IN PART. Signed by Senior Judge Cindy K Jorgenson on 6/6/2018. (MFR)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
Steven Lee Tucker and Gail Tucker,
9
Plaintiffs,
10
vs.
11
Don Verrett, et al.,
12
Defendants.
13

)
)
)
)
)
)
)
)
)
)

No. CIV 17-192-TUC-CKJ
ORDER

14

Pending before the Court are the Motion to Dismiss for Failure to State a Claim (Doc.

15

20), the Motion to Conduct Discovery Prior to the Time Specified in the Rule 26(d) and

16

Request Leave of the Court to Extend the Time to Serve Unknown Defendant John Doe and

17

Dismiss Defendants Janes Does (1-10) without Prejudice (Doc. 27), the Motion for Leave

18

of the Court to Attach Audio Recording as an Exhibit to Plaintiff’s Response to State

19

Defendants’ Motion to Dismiss (Doc. 29), the Request Leave of the Court for an Order to

20

extend Deadline to File Response to State Defendants’ Motion to Dismiss (Doc. 34), the

21

Motion for Ruling on State Defendants’ Sovereign Immunity Defense (Doc. 36), and the

22

Motion to Deem Plaintiffs’ Motion for Ruling as Response to Defendants’ Motion to

23

Dismiss; Motion to Extend Time to Reply if Plaintiffs’ Motion Deemed a Response; Motion

24

for Plaintiffs to Comply with Court Rules (Doc. 38).

25
26

I. Procedural Background

27

On April 28, 2017, Steven L. Tucker (“Tucker”) filed a Complaint for Violation of

28

Civil Rights (Doc. 1) against Don Verrett, Nikki Studer, Pam Jensen, John March, CO II

1

Ratkevick, CIU Zormier, Maureen Rodriguez, Charles Ryan, the Arizona Department of

2

Corrections (“ADC”), the State of Arizona (“the State”), John Does, and Jane Does

3

(collectively, “State Defendants”). Each of the personally named Defendants were sued in

4

both their individual and official capacities. On June 20, 2017, a First Amended Complaint

5

(“FAC”) was filed by Tucker and Gail Tucker (collectively, “the Tuckers”). The FAC

6

named the same defendants. As summarized by State Defendants:

7
8
9
10
11
12
13
14
15
16

On June 20, 2017, the Tuckers filed their twenty-eight-count First Amended
Complaint. (Dkt. 5.) Steven Tucker alleges that the conditions of his supervision and
release during his parole were nullified and, as such, these restrictions were
unlawfully imposed. (Id., ¶¶ 33-46.) He alleges that the State Defendants searched
his home for a compliance check and subjected him to unlawful search and seizure
and false arrest and imprisonment. (Id., ¶¶ 47-63.) He alleges that he was forced to
sign new conditions on July 8, 2015, and new sets since then, with an illegal and
unconstitutional condition #13(F). (Id., ¶¶ 76-77.) The Tuckers claim state-law
violations for negligence, gross negligence, illegal search and seizure, and false arrest
and imprisonment. (Id., Counts One through Eight.) They further assert claims under
§ 1983 for negligence and gross negligence (Counts Nine, Eighteen, and Nineteen);
illegal search and seizure (Counts Ten through Thirteen); false arrest and
imprisonment (Counts Fourteen through Seventeen); false arrest and imprisonment
due to unlawful parole conditions (Counts Twenty through Twenty-Six and Twenty
Eight; and failure to provide medical care (Count Twenty-Seven). He seeks
$1,375,000 in compensatory, general, special, punitive, and exemplary damages. (Id.,
¶¶ 169-76.)
Motion to Dismiss (Doc. 20, p. 2).

17

On August 18, 2017, State Defendants filed a Motion to Dismiss for Failure to State

18

a Claim (Doc. 20). State Defendants assert the FAC fails to state a claim upon which relief

19

can be granted, the State of Arizona and its agencies (including officers in their official

20

capacities) have sovereign immunity, ADC is a non-jural entity and cannot be sued, the state

21

law claims should be dismissed as there is no valid federal claim, the Tuckers failed to serve

22

a Notice of Claim, the state law claims are barred by state law, Counts 1 through 8 and 20

23

through 26 are time-barred, Counts 9, 18, and 19 seek to state claims that do not exist, Counts

24

10 through 17 and 20 through 26 fail to state a deprivation of a constitutional right, and State

25

Defendants are immune or qualifiedly immune.

26

On September 26, 2017, the Court granted the Tuckers’ request to file a second

27

amended complaint. The Court stated, “the proposed amendments are technical in nature and

28

do not appear to moot the pending Motion to Dismiss.” 9/26/17 Order (Doc. 24, p. 2). The
-2-

1

Tuckers filed a Second Amended Complaint (“SAC”) on October 10, 2017. The SAC names

2

the same State Defendants1 and includes the same 28 counts.

3

On October 12, 2017, the Tuckers filed a Motion to Conduct Discovery Prior to the

4

Time Specified in the Rule 26(d) and Request Leave of the Court to Extend the Time to

5

Serve Unknown Defendant John Doe and Dismiss Defendants Janes Does (1-10) without

6

Prejudice (Doc. 27). A response (Doc. 28) and a reply (Doc. 30) have been filed.

7

On October 30, 2017, the Tuckers filed a Motion for Leave of the Court to Attach

8

Audio Recording as an Exhibit to Plaintiff’s Response to State Defendants’ Motion to

9

Dismiss (Doc. 29). A response (Doc. 32) and a reply (Doc. 33) have been filed.

10

On November 20, 2017, the Tuckers filed a Request Leave of the Court for an Order

11

to extend Deadline to File Response to State Defendants’ Motion to Dismiss (Doc. 34). A

12

response (Doc. 35) and a reply (Doc. 37) have been filed.

13

On November 27, 2017, the Tuckers filed a Motion for Ruling on State Defendants’

14

Sovereign Immunity Defense (Doc. 36). Defendants have filed a Motion to Deem Plaintiffs’

15

Motion for Ruling as Response to Defendants’ Motion to Dismiss (Dkt. 20); Motion to

16

Extend Time to Reply if Plaintiffs’ Motion Deemed a Response; Motion for Plaintiffs to

17

Comply with Court Rules (Doc. 38). A response (Doc. 39) and a reply (Doc. 40) have been

18

filed.

19
20

II. Motion for Leave of the Court to Attach Audio Recording as an Exhibit to Plaintiff’s
Response to State Defendants’ Motion to Dismiss (Doc. 29)

21
The Tuckers request leave to attach an audio recording of a July 6, 2015, Arizona
22
Board of Executive Clemency Hearing in re: Parole Revocation Hearing for Steven Tucker
23
ADOC #070389 to their response to the Motion to Dismiss. The Tuckers assert the recording
24
contains evidence upon which the SAC “necessarily references and relies upon and is
25
tantamount to the Tuckers’ claims.” Motion (Doc. 29, p. 2). The Tuckers have provided a
26
27
28

1

The SAC replaces CO II Ratkevick and CIU Zormier with Nicholas Ratkevich and
Richard Zormeier.
-3-

1

copy of the recording to the Court.

2

The Tuckers assert the audio recording should properly be considered with the Motion

3

to Dismiss as extraneous material that the complaint refers to, is central to the Tuckers’

4

claims, and to which no party questions the authenticity. Ranch Realty, Inc. v. DC Ranch

5

Realty, LLC, 614 F. Supp. 2d 983, 987-88 (D. Ariz. 2007). The Tuckers also assert the audio

6

recording clarifies allegations in the SAC which are unclear. Id. at 988. However, the

7

meaning of the allegations in the SAC are not unclear. The Motion to Dismiss addresses the

8

sufficiency of the allegations in the SAC, not whether there is sufficient proof of the

9

allegations (e.g. testimony that Ryan knew or should have know condition 13(f) was

10

unconstitutional). Indeed, for purposes of the Motion to Dismiss, the Court will accept as

11

true the allegations contained within the SAC. See Cervantes v. United States, 330 F.3d

12

1186, 1187 (9th Cir. 2003) (court must take as true all allegations of material fact and

13

construe them in the light most favorable to plaintiff); Scheuer v. Rhodes, 416 U.S. 232, 236

14

(1974) (overruled on other grounds, 457 U.S. 800) (in general, a complaint is construed

15

favorably to the pleader); Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)

16

(court does not accept as true unreasonable inferences or conclusory legal allegations cast

17

in the form of factual allegations). Further, the Court has reviewed the copy of the audio

18

recording provided to the Court and finds the audio recording does not assist in consideration

19

of the issues presented in the Motion to Dismiss. While Ranch Realty permits the

20

consideration of extraneous material, it does not require such consideration. In light of the

21

issues presented in the Motion to Dismiss and the clear allegations in the SAC, the Court will

22

deny this request.

23
24
25
26

III. Request Leave of the Court for an Order to extend Deadline to File Response to State
Defendants’ Motion to Dismiss (Doc. 34), Motion for Ruling on State Defendants’ Sovereign
Immunity Defense (Doc. 36) and Motion to Deem Plaintiffs’ Motion for a Pre-Trial Ruling
as a Response to Defendants’ Motion to Dismiss; Motion to Extend Time to Reply if
Plaintiffs’ Motion Deemed a Response; Motion for Plaintiffs to Comply with Court Rules
(Doc. 38)

27
The Tuckers request additional time to file a response to the Motion to Dismiss to
28
-4-

1

afford them an opportunity to know the Court’s ruling on the Motion for Leave of the Court

2

to Attach Audio Recording as an Exhibit to Plaintiff's Response to State Defendants' Motion

3

to Dismiss (Doc. 29) before finalizing and filing their response. Although this is the

4

Tuckers’ third request for an extension, the Tuckers have provided a specific reason why the

5

request is being made. Additionally, the Tuckers have requested the Court rule on

6

Defendants’ sovereign immunity defense. State Defendants request the Court deem the

7

Tuckers’ request for a ruling on the sovereign immunity defense as a response.

8

As State Defendants point out, the audio recording does not address the issues that are

9

the subject of the Motion to Dismiss. Moreover, the Tuckers’ Motion for Ruling on State

10

Defendants’ Sovereign Immunity Defense partially addresses the merits of the Motion to

11

Dismiss. Indeed, the Tuckers again assert their claims revolve entirely around the fact that

12

Tucker did not have any valid or enforceable conditions of supervision and release from

13

March 20, 2014 through July 8, 2015. As previously discussed, the Court accepts as true the

14

allegations contained within the SAC. Cervantes, 330 F.3d at 1187. Also, the Tuckers do

15

not provide any viable reason why they have not filed any response, even without the

16

proposed attachment. The Tuckers propose that the audio recording would clarify allegations

17

in the SAC, but do not state how this affects addressing the legal issues presented in the

18

Motion to Dismiss. The Court finds good cause has not been shown to extend the deadline

19

to file a response. Further, the Court will accept the Motion for Ruling on State Defendants’

20

Sovereign Immunity Defense as the Tuckers’ response. However, the Court will deny State

21

Defendants’ Motion to Extend Time to Reply if Plaintiffs’ Motion Deemed a Response.

22
23

IV. State Defendants’ Request for Dismissal Based on Sovereign Immunity (Doc. 20)

24

State Defendants assert the Tuckers’ claims against the State and its agencies are

25

barred by sovereign immunity. Indeed, “[s]tates are protected by the Eleventh Amendment

26

from suits brought by citizens in federal court.” Douglas v. Cal. Dep't of Youth Auth., 271

27

F.3d 812, 817, amended by, 271 F.3d 910 (9th Cir.2001); Pennhurst State Sch. & Hosp. v.

28

Halderman, 465 U.S. 89, 100 (1984). Furthermore, a suit against an officer in his or her
-5-

1

official capacity is equivalent to bringing suit against the entity (i.e., the State of Arizona)

2

for which the Eleventh Amendment bars damages absent a waiver of sovereign immunity.

3

See Kentucky v. Graham, 473 U.S. 159, 166 (1985); Will v. Mich.Dep’t of State Police, 491

4

U.S. 58, 71 (1989).

5

Section 1983 did not abrogate a state's Eleventh Amendment immunity, Quern v.

6

Jordan, 440 U.S. 332, 341, and Arizona has not waived that immunity with respect to claims

7

brought

8

CV-15-02538-PHX-JAT, 2016 WL 4271850, at *3 (D. Ariz. Aug. 15, 2016), reconsideration

9

denied, No. CV-15-02538-PHX-JAT, 2016 WL 4592160 (D. Ariz. Sept. 2, 2016), and aff'd,

10

No. 16-16645, 2017 WL 4182114 (9th Cir. June 14, 2017), and aff'd, No. 16-16645, 2017

11

WL 4182114 (9th Cir. June 14, 2017). Moreover, “[t]he Eleventh Amendment bars a suit

12

against state officials when the state is the real, substantial party in interest.” Pennhurst, 465

13

U.S. at 101 (citation and internal quotation marks omitted). The “general rule is that relief

14

sought nominally against an officer is in fact against the sovereign if the decree would

15

operate against the latter.” Id. (citation omitted). “[A]s when the State itself is named as the

16

defendant, a suit against state officials that is in fact a suit against a State is barred regardless

17

of whether it seeks damages or injunctive relief.” Id. at 101–02 (citation omitted). The Court

18

finds dismissal of the claims against the State and ADC as prohibited by sovereign immunity

19

is appropriate. Moreover, those claims against individual state defendants in their official

20

capacity are similarly required to be dismissed as barred by sovereign immunity.

21

Accordingly, Counts One through Nine, Twenty-Seven, and Twenty-Eight against the State,

22

ADC, and Ryan, along with Counts Nine through Twenty-Six against individually named

23

defendants, will be dismissed.

under

Section

1983

in

federal

court,

Camboni

v.

Brnovich,

No.

24
25

V. ADC as a Non-Jural Entity

26

State Defendants assert ADC is a non-jural entity and must be dismissed from this

27

action. Indeed, “[s]tate agencies that may sue and be sued are known as jural entities; non

28

-jural entities are not subject to suit.” Morgan v. Arizona, 2007 WL 2808477, * 8
-6-

1

(D.Ariz.2007) (citations omitted). An action cannot be brought against a state or county

2

agency that lacks the authority to sue and be sued. See, Gotbaum ex rel. Gotbaum v. City of

3

Phoenix, 2008 WL 4628675, *7 (D.Ariz.2008); see also Braillard v. Maricopa County, 224

4

Ariz. 481, 487, ¶ 12, 232 P.3d 1263, 1269 (App. 2010) (citations omitted) (“Governmental

5

entities have no inherent power and possess only those powers and duties delegated to them

6

by their enabling statutes. Thus, a governmental entity may be sued only if the legislature has

7

so provided.”).

8

ADC “is a creation of the Arizona Legislature . . . The enabling legislation for [ADC]

9

does not authorize it to sue or be sued in its own right as a separate and distinct legal entity.”

10

Austin v. State of Arizona, 2008 WL 4368608,* 5 (D.Ariz.2008). ADC, therefore, is a non-

11

jural entity and cannot be sued. ADC and the claims against ADC will be dismissed.

12
13

VI. State Law Claims

14

A. Notice of Claim

15

State Defendants assert the Tucker’s Counts One through Eight are barred because the

16

Tuckers failed to serve a Notice of Claim. A.R.S. § “12-821.01(A) requires a person who

17

has a claim against a [public entity or a public employee] to file the claim [with the person

18

authorized to accept service or the individual public employee] within 180 days ‘after the

19

cause of action accrues. Any claim not filed within that time ‘is barred and no action may

20

be maintained thereon.’” Barth v. Cochise County, Arizona, 213 Ariz. 59, 62, 138 P.3d 1186,

21

1189 (App. 2006) (citation omitted). This requirement “constitutes a ‘procedural rather

22

than a jurisdictional requirement[.]” McGrath v. Scott, 250 F.Supp.2d 1218 (D.Ariz. 2003).

23

This “requires that those persons asserting claims against pubic entities or public

24

employees do so by actually delivering or ensuring that the actual delivery of the notice of

25

claim to the appropriate person within the statutory period.” Lee v. State, 215 Ariz. 540, 544,

26

161 P.3d 583, 587 (App. 2007); Harris v. Cochise Health Systems, 215 Ariz. 344, 351, 160

27

P.3d 223, 231 (App. 2007). Service of a notice of claim may be made through the actual

28

delivery to a person authorized to accept service or through regular mail. Lee. 218 Ariz. at
-7-

1

239.

2

Here, State Defendants assert the Tuckers have neither mailed nor personally served

3

a notice of claim on the state of Arizona, ADC, or Defendant Ryan. The Tuckers have not

4

disputed this assertion. The Tuckers assert, however, that fear of retaliation from parole

5

officers excuses the failure to provide a Notice of Claim. Arizona does permit the tolling of

6

the Notice of Claim statute in extraordinary circumstances. Little v. State, 225 Ariz. 466,

7

Ariz.472, 240 P.3d 861, 867 (Ct. App. 2010). However, Arizona does not toll the statute of

8

limitations for persons while incarcerated, Goldwater v. Jones, No. 1 CA-CV 07-0473, 2008

9

WL 2589134, at *2 (Ariz. Ct. App. June 26, 2008). It is difficult to conclude that fear of

10

retaliation from a parole officer warrants equitably tolling if fear of a retaliation from a prison

11

corrections officer would not warrant equitably tolling.

12

Moreover, it is not simply that the Tuckers delayed in submitting a Notice of Claim.

13

They have simply failed to submit one at all. The Court finds the Notice of Claim statute has

14

not been complied with and, therefore, dismissal of the state claims against the State, ADC,

15

and Ryan is appropriate.

16
17

B. State Claims Against the State and Required Serious Physical Injury to State a Claim

18

Arizona law provides that “[a]ny and all causes of action which may arise out of tort

19

caused by the director, prison officers or employees of the department [of Corrections],

20

within the scope of their legal duty, shall run only against the state. A.R.S. § 31-201.01(F);

21

Howland v. State, 169 Ariz. 293, 297, 818 P.2d 1169, 1173 (App. 1991); Rodrigues v. Ryan,

22

No. CV16-8272-PCT-DGC (ESW), 2017 WL 6033784, at *4 (D. Ariz. Dec. 6, 2017). As

23

the only proper defendant for the state tort claims is the state of Arizona, the Tuckers’ claims

24

against ADC and Ryan in Counts 1 through 8 must be dismissed.

25

Moreover, Arizona law provides:

26

A person who is convicted of a felony offense and who is incarcerated while awaiting
sentence or while serving a sentence imposed by a court of law may not bring a cause
of action seeking damages or equitable relief from the state or its political
subdivisions, agencies, officers or employees for injuries suffered while in the custody
of the state or its political subdivisions or agencies unless the complaint alleges

27
28

-8-

1

specific facts from which the court may conclude that the plaintiff suffered serious
physical injury or the claim is authorized by a federal statute.

2
A.R.S. § 31-201.01(L). “[S]erious physical injury” as “an impairment of physical condition
3
that creates a substantial risk of death or that causes serious disfigurement, prolonged
4
impairment of health or prolonged loss or impairment of the function of any bodily organ.”
5
A.R.S. § 31-201.01(N)(2). The Tuckers have not stated any facts which support an
6
allegation of a serious physical injury. Rather, in the Conclusion of the SAC, the Tuckers
7
allege psychological trauma, emotional anguish, the violation of the right to be free from
8
cruel and unusual punishment, and the right to be free from punishment without due process
9
as the injuries. As no serious physical injury has been alleged, dismissal of Counts One
10
through Eight is appropriate. While the Court recognizes that this deficiency may be cured
11
by a more carefully drafted complaint, such amendment of these claims would be futile
12
because, as previously stated, dismissal of these claims is appropriate for other reasons.
13
14
VII. Statute of Limitations
15
State Defendants assert Counts One through Eight should be dismissed as barred by
16
the statute of limitations. See A.R.S. § § 12-821 (“All actions against any public entity or
17
public employee shall be brought within one year after the cause of action accrues and not
18
afterward.”). State Defendants assert the Tuckers’ claims accrued on May 3, 2015. The
19
Tuckers’ SAC indicates, however, the claims did not accrue until either July 6, 2015 or July
20

8, 2015. For purposes of this Order, the Court will accept the accrual date of July 8, 2015.2

21
22
23
24
25
26
27
28

2

Arguably, the Tuckers could not have brought their claims until the Parole Board
determined that violations alleged against Tucker were invalid. See Heck v. Humphrey, 512
U.S. 477 (1994) (in order to recover damages for injuries caused by actions whose
unlawfulness would render a conviction or imprisonment invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of habeas corpus); Spencer v.
Kemna, 523 U.S. 1 (1998) (Supreme Court assumed, without deciding, Heck applies to
parole revocations); Federal civil rights action (42 U.S.C.A. § 1983), Law of Probation &
Parole § 29:30 (2d).
-9-

1

However, the Tuckers did not file the original complaint until April 28, 2017. Moreover, the

2

Tuckers have not alleged any facts that the statute of limitations should be tolled. See e.g.

3

Viniegra v. Town of Parker Mun. Prop. Corp., 241 Ariz. 22, 27, 383 P.3d 665, 670 (Ct. App.

4

2016). Again, amendment of the complaint may cure the deficiency, but because the

5

dismissal is appropriate for reasons previously stated, the Court finds amendment would be

6

futile.

7
8

VIII. Section 1983 Negligence and Gross Negligence Claims

9

Counts Nine, Eighteen and Nineteen of the SAC seek to state claims for negligence

10

and gross negligence. However, to state a claim for relief under § 1983, a plaintiff must

11

plead “(1) defendants acting under color of state law (2) deprived plaintiffs of rights secured

12

by the Constitution or federal statutes.” Williams v. California, 764 F.3d 1002, 1009 (9th

13

Cir. 2014) (citation omitted). Section 1983 does not provide a cause of action for violations

14

of state law or prison regulations. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981).

15

Indeed, “[t]he Supreme Court has stated that negligence, whether gross or simple, is

16

insufficient to prove a constitutional violation.” Kennedy v. City of Ridgefield, 440 F.3d

17

1091, 1093 (9th Cir. 2006). In other words, the Tuckers’ claims for a §1983 constitutional

18

violation based on negligence or gross negligence are not a cognizable claims. Dismissal of

19

Counts Nine, Eighteen and Nineteen, therefore, is appropriate.

20
21

IX. Violations of Parolee – Search

22

In Counts Ten, Eleven, Twelve, and Thirteen, the Tuckers allege State Defendants

23

violated their rights by entering their home, searching the home, and seizing property from

24

the home, without probable cause, signed conditions, legal authority, consent, or a valid

25

warrant. However, the Supreme Court has determined that “the Fourth Amendment does not

26

prohibit [an officer] from conducting a suspicionless search of a parolee.” Samson v.

27

California, 547 U.S. 843, 857 (2006). The Tuckers do not dispute that Tucker was on some

28

form of supervision, whether it was called Home Arrest, Supervision, or Community Parole.
- 10 -

1

As Tucker was on some form of supervision at the time of the alleged claims, the Court finds

2

the Tuckers have failed to state a claim upon which relief may be granted as to the claims

3

based on searches of a parolee, i.e., Counts Ten, Eleven, Twelve, and Thirteen. Moreover,

4

the Court finds the detention of Tucker on the couch during the search, Count Fourteen, does

5

not state a claim upon which relief may be granted.

6
7

X. Violations of Parolee – Arrest/Detention

8

The Tuckers allege State Defendants violated their rights by detaining Tucker in the

9

home, arresting him, transporting and imprisoning him without probable cause, signed

10

conditions, legal authority, consent, or a valid warrant. State Defendants rely on Samson and

11

similar authority in requesting dismissal of these claims. However, that authority does not

12

address whether a parolee may be arrested without probable cause. Indeed, State Defendants

13

have not cited to any authority that states a parolee may be arrested without probable cause.

14

However, the statute relied upon by the Tuckers provides:

15

If the parole clerk of the department of corrections or the director of the department
of corrections, or the board of executive clemency or any member thereof, has
reasonable cause to believe that a paroled prisoner or an offender on community
supervision has violated his parole or community supervision and has lapsed or is
probably about to lapse into criminal ways or company, then any of such persons may
issue a warrant for retaking the prisoner or offender at any time prior to expiration of
the maximum sentence or term of community supervision, which time shall be
specified in the warrant.

16
17
18
19

A.R.S. § 31-415. The Tuckers allege State Defendants searched their residence, including
20
electronic equipment. After viewing the electronic equipment, State Defendants obtained
21
a warrant for Tucker’s arrest. Under the statute, a violation of conditions is not required.
22
Rather, a search of the electronic equipment provided reasonable cause to State Defendants
23
that Tucker had lapsed or would probably lapse into criminal ways. The issuance of the
24
arrest warrant was lawful following the search. The Court finds the Tuckers have failed to
25
state a claim upon which relief may be granted in Counts Fifteen through Seventeen.
26
27
28
- 11 -

1

XI. Conditions of Parole

2

The Tuckers allege Tucker was subjected to unlawful conditions of parole because the

3

conditions of home arrest that he had previously acknowledged and signed were superseded

4

or nullified when he signed his Proclamation of Community Parole. However, mere

5

violations of state law or prison regulations are insufficient to entitle an inmate to relief under

6

to 42 U.S.C. § 1983. Ybarra v. Bastian, 647 F.2d 891, 892 (9th Cir. 1981). In other words,

7

that a State Defendant may not have complied with Arizona requirements does not

8

automatically mean that a constitutional violation has occurred. The Court finds the Tuckers

9

have failed to state a claim upon which relief may be granted in Counts Twenty through

10

Twenty-Six.

11
12

XII. Immunity

13

State Defendants also assert that the parole officer defendants are entitled to immunity

14

from the Tuckers’ claims. “[A]bsolute immunity ‘extend[s] to parole officials for the

15

‘imposition of parole conditions’’ because that task is ‘integrally related to an official’s

16

decision to grant or revoke parole,’ which is a “quasi-judicial” function.” Thornton v.

17

Brown, 757 F.3d 834, 840 (9th Cir. 2013) (citing Swift v. California, 384 F.3d 1184, 1189

18

(9th Cir.2004)). The Swift court, however, did state that “parole officers are not absolutely

19

immune from suits arising from conduct distinct from the decision to grant, deny, or revoke

20

parole.” 384 F.3d at 1186. In other words, parole officers’ “immunity for conduct arising

21

from their duty to supervise parolees is qualified.” Thornton, 757 F.3d at 840.

22
23

State Defendant parole officers, therefore, are absolutely immune in their conduct
regarding the imposition (or lack thereof) of parole conditions.

24

In considering whether State Defendant parole officers are entitled to qualified immunity

25

for their conduct in supervising Tucker, the Court recognizes that government officials are

26

entitled to qualified immunity "insofar as their conduct does not violate clearly established

27

statutory or constitutional rights of which a reasonable person would have known." Liston v.

28

County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997), citing Harlow v. Fitzgerald, 457 U.S.

- 12 -

1

800, 818 (1982). The defense of qualified immunity allows for errors in judgment and protects

2

"all but the plainly incompetent or those who knowingly violate the law . . . [I]f officers of

3

reasonable competence could disagree on the issue [whether or not a specific action was

4

constitutional], immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986).

5

The Court must determine "whether, in light of clearly established principles governing the

6

conduct in question, the officer objectively could have believed that his conduct was lawful."

7

Watkins v. City of Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998).

8

The Court agrees with State Defendants that no “reasonable parole officer would

9

expect that, in light of Tucker’s dangerous crimes against children, that supervising him on

10

parole or conducting a compliance check while he was undisputedly on parole would violate

11

a clearly established constitutional right.” Motion to Dismiss (Doc. 20, p. 12). The Tuckers

12

do not dispute that Tucker was on some parole status. The parole officers objectively could

13

have believed their conduct was lawful in conducting a check of Tucker’s residence. The

14

Court finds the parole officers are entitled to qualified immunity.

15
16

XIII. Respondeat Superior Liability

17

State Defendants also assert Counts Twenty-Seven and Twenty-Eight (Ryan knew or

18

should have known that (1) the failure to provide necessary medical care would violate rights

19

and (2) Tucker was being coerced into signing an illegal and unconstitutional parole

20

condition) should be dismissed as there is no respondeat superior liability in section 1983

21

cases. Monell v. Dep’t of Social Svcs., 436 U.S. 658, 691 (1978). Indeed, Congress did not

22

intend to “impose liability vicariously on [employers or supervisors] solely on the basis of

23

the existence of an employer-employee relationship with a tortfeasor.” Monell, 436 U.S. at

24

692. Supervisory personnel are not generally liable under section 1983 for actions of their

25

employees under a respondeat superior theory; therefore, when a named defendant holds a

26

supervisory position, the causal link between him and the claimed constitutional violation

27

must be specifically alleged. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir.2001); Fayle

28

v. Stapley, 607 F.2d 858, 862 (9th Cir.1979); Hansen v. Black, 885 F.2d 642, 646 (9th
- 13 -

1

Cir.1989); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Larez v. City of Los

2

Angeles, 946 F.2d 630 (9th Cir. 1991) (supervisory liability in an individual capacity

3

requires: (1) that defendant's “own culpable action or inaction in the training, supervision,

4

or control of his subordinates” caused the constitutional injury, (2) that the defendant

5

“acquiesce[d] in the constitutional deprivations of which [the] complaint is made,” or (3) that

6

his conduct showed a “reckless or callous indifference to the rights of others”).

7

Here, the Tuckers’ conclusorily allege Ryan knew or should have known of violations.

8

However, the SAC fails to allege specific facts to connect Ryan to any wrongdoing. The

9

Court finds dismissal of these claims to be appropriate.

10
11

XIV. Punitive Damages

12

In the Conclusion and Prayer from Relief of the SAC, the Tuckers have requested an

13

award of punitive damages. However, A.R.S. § 12-820.04 states that “[n]either a public

14

entity nor a public employee acting within the scope of his employment is liable for punitive

15

or exemplary damages.”

16

departments, agencies, boards, and commissions are immune from liability for losses arising

17

out of a judgment for willful and wanton conduct resulting in punitive or exemplary

18

damages.” The Court, therefore, will dismiss the Tuckers’ request for punitive damages.

Moreover, under A.R.S. § 41-621(K) “[t]he state and its

19
20
21

XV. Motion to Conduct Discovery Prior to the Time Specified in the Rule 26(d) and Request
Leave of the Court to Extend the Time to Serve Unknown Defendant John Doe and Dismiss
Defendants Janes Does (1-10) without Prejudice (Doc. 27)

22

As the Court has found that the Tuckers have failed to state a claim upon which relief

23

may be granted, this Court will deny this request as moot.

24
25

Accordingly, IT IS ORDERED:

26

1.

27
28

The Motion to Dismiss for Failure to State a Claim (Doc. 20) is GRANTED.
a.

Counts One through Nine, Twenty-Seven, and Twenty-Eight against
the State, ADC, and Ryan, along with Counts Nine through Twenty-Six
- 14 -

1

against individually named defendants, are DISMISSED.

2

b.

ADC and the claims against it are DISMISSED.

3

c.

Counts One through Eight against the State, ADOC, and Ryan are

4

DISMISSED.

5

d.

6

Counts One through Eight are DISMISSED as being banned by the
statute of limitations.

7

e.

8

Counts Nine, Eighteen and Nineteen are DISMISSED as noncognizable claims.

9

f.

Counts Ten through Seventeen and Twenty through Twenty-Six are

10

DISMISSED for failure to state claim upon which relief may be

11

granted.

12

g.

13

Counts Twenty-Seven and Twenty-Eight are DISMISSED for failing
to allege a causal link between Defendant and the claimed violations.

14

h.

The claim for punitive damages is DISMISSED.

15

i.

The SAC and this action are DISMISSED.

16

2.

The Motion to Conduct Discovery Prior to the Time Specified in the Rule 26(d)

17

and Request Leave of the Court to Extend the Time to Serve Unknown Defendant John Doe

18

and Dismiss Defendants Jane Does (1-10) without Prejudice (Doc. 27) is DENIED AS

19

MOOT.

20
21
22
23
24

3.

The Motion for Leave of the Court to Attach Audio Recording as an Exhibit

to Plaintiff’s Response to State Defendants’ Motion to Dismiss (Doc. 29) is DENIED.
4.

The Request Leave of the Court for an Order to extend Deadline to File

Response to State Defendants’ Motion to Dismiss (Doc. 34) is DENIED.
5.

The Motion for Ruling on State Defendants’ Sovereign Immunity Defense

25

(Doc. 36) is GRANTED to the extent the Court herein rules on State Defendants’ Sovereign

26

Immunity Defense.

27
28
- 15 -

1

6.

The Motion to Deem Plaintiffs’ Motion for Ruling as Response to Defendants’

2

Motion to Dismiss; Motion to Extend Time to Reply if Plaintiffs’ Motion Deemed a

3

Response; Motion for Plaintiffs to Comply with Court Rules (Doc. 38) is GRANTED IN

4

PART AND DENIED IN PART.

5
6
7

7.

The Clerk of Court shall enter judgment and shall then close its file in this

matter.
DATED this 6th day of June, 2018.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 16 -