ROBERT C. BROOMFIELD, Senior District Judge.
Plaintiff Brian Gawlik, an inmate who is represented by counsel, brought this is civil rights case against numerous Defendants regarding incidents occurring at Arizona State Prison Complex (ASPC) Eyman. Plaintiff's Complaint raises federal and state claims and was initially filed in Maricopa County Superior Court. Defendants removed the case to the United States District Court for the District of Arizona. Defendants move to dismiss multiple Defendants and counts on various grounds. (Doc. 4.)
On January 31, 2013, the Court granted the motion as to most claims in Count I and directed the parties to file supplemental briefing with supporting documentation on the argument that Plaintiff failed to exhaust administrative remedies on his remaining federal claims. (Doc. 15.) Specifically, those remaining federal claims are the 42 U.S.C. § 1983 claim for assault in Count I and the 42 U.S.C. §1985 conspiracy claim in Count II. The Court reserved decision on Defendants' additional arguments raised in the Motion to Dismiss until resolution of the exhaustion issue as to all federal claims. (Doc. 15.)
On filing their reply to the Supplemental briefing, Defendants withdraw their motion to dismiss for failure to exhaust administrative remedies as to the assault. (Doc. 42.) Because they concede for the purposes of this motion that Plaintiff exhausted as to one of his federal claims, Count I, the Court will also now address the remainder of the arguments in the Motion to Dismiss. (Doc. 4.)
The Court will grant the motion in part and deny it in part.
In addition, Defendant Annis separately moves to dismiss. (Doc. 24.) He argues that (1) Plaintiff did not serve him with a Notice of Claim as required by state law; (2) he is not a proper Defendant in the state tort claims; (3) Plaintiff fails to state a claim under 42 U.S.C. § 1985; and (4) Plaintiff did not exhaust his administrative remedies. ( Id. ) The Court will grant the motion in part and deny it in part.
In his Complaint, Plaintiff alleges that on August 21, 2011, Correctional Officer Annis "forcefully walk[ed] Plaintiff out of the dining hall, using Plaintiff's body as a battering ram' to slam open the heavy door on the way out of the building, " and then "took Plaintiff's bicep and body-maliciously, sadistically and without provocation- smashed his head face-first, against the brick wall of the Health Care building." (Doc. 1-2 (Compl.) ¶¶ 50, 58.) This resulted in a sprained foot and multiple facial fractures. ( Id. ¶ 132.) Plaintiff further alleges, inter alia, that Defendants failed to provide him medical care and ignored his requests for care.
Count I is brought pursuant to 42 U.S.C. § 1983 and alleges an Eighth Amendment violation by Annis for the assault. ( Id. ¶ 197).
Count II is brought pursuant to 42 U.S.C. § 1985 and alleges a conspiracy under color of law by Annis, Duron, Barden, Halstead, Waits, Hayes and other unnamed officers to deprive Plaintiff of "equal protection of the law pursuant to the Eighth Amendment" by failing to properly report the initial assault and battery, failing to later file reports of the incident, failing to discipline Annis, failing on numerous occasions to provide Plaintiff with necessary and timely medical attention, failing to respond to Plaintiff's requests for aid, and wrongfully filing documents to reflect that Plaintiff was seen by a health care provider on August 22, 2011, when he was not ( id. ¶¶ 204-205); and a conspiracy by Annis, Duron, and others who threatened to write-up Plaintiff for requesting medical attention and who did not file a report about the assault ( id. ¶ 206).
Count III is a state law claim for assault by Annis.
Count IV is a state law claim for battery by Annis.
Count V is a state-law claim for negligence, gross negligence, and professional negligence by the State and unspecified individual Defendants for failing to exercise care, skill, and due diligence during "the processing, classification, housing and responses to Plaintiff's concerns regarding his safety...." ( Id. ¶ 219, see also ¶¶ 221, 224).
Count VI is a state-law claim for intentional infliction of emotional distress by Annis for the assault ( id. ¶ 228); by Annis, Duron, Barden, Halstead, Waits, Hayes and John and Jane Doe Defendants for the assault and deliberate indifference to Plaintiff's medical needs ( id. ¶¶ 229, 230).
Count VII is a state-law claim for negligent infliction of emotional distress by Annis, Duron, Barden, Halstead, Waits, and Hayes in covering up the assault and battery and ignoring Plaintiff's medical needs. ( Id. ¶ 233).
Count VIII is a state-law claim for false imprisonment by Annis because the assault constituted unlawful restraint. ( Id. ¶¶ 237-239.)
Plaintiff seeks damages, including punitive damages.
II. Defendants' Motion to Dismiss-Federal Claims
The only remaining exhaustion argument concerns the Count II claim under 42 U.S.C. § 1985. Because the Court will dismiss Count II for failure to state a claim, the Court need not address the exhaustion argument at this time.
B. Improper Defendant
Defendants argue that because a state is not a "person" for purposes of 42 U.S.C. § 1983, the Complaint fails to state a cause of action under 42 U.S.C. § 1983 as to the State of Arizona and thus this cause of action must be dismissed as to the State. (Doc. 4 at 4.)
Plaintiff responds that the Eleventh Amendment bars such suits unless the State has waived its immunity ...." (Doc. 8 at 5, citing Welch v. Texas Dept. of 2310 Highways and Public Transportation, 483 U.S. 468, 472-73 (1987) (plurality opinion)(emphasis added) (quoting Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).) Plaintiff argues that Defendants filed their Notice of Removal on September 13, 2012 pursuant to Title 28 U.S.C. § 1441 thereby waiving their right to assert Eleventh Amendment Immunity and that the Supreme Court has directly ruled on this issue holding that a state's removal of a suit to federal court constituted a waiver of its right to assert Eleventh Amendment immunity. (Doc. 8 at 5, citing Lapides v. Bd. of Regents of the Univ. Sys. of Georg., 535 U.S. 613 (2002).)
Defendants respond that in Lapides the Supreme Court held that the waiver of the state's Eleventh Amendment immunity was limited to state-law claims as Lapides ' only federal claim was under § 1983. (Doc. 11 at 3.) The Court upheld its prior decision that states are not "persons" for purposes of § 1983 claims. 535 U.S. at 617. Defendants conclude that because the State is not a "person" for purposes of § 1983, Count I must be dismissed as to the State.
The Court agrees with Defendants that the ruling in Lapides is limited to the waiver of immunity on the state law claims. 535 U.S. at 617. The state is not a person for purposes of § 1983 and will be dismissed from Count I for assault, the only remaining § 1983 claim. See Will, 491 U.S. at 66.
C. 42 U.S.C § 1985 Claim
Defendants argue that 42 U.S.C. § 1985(3) prohibits conspiracies to deprive a person of equal protection of the laws or of the equal privileges and immunities under the law. 42 U.S.C. § 1985(3). (Doc. 4 at 5.) To state a claim, plaintiff must establish that a conspiracy existed to deprive him of equal protection of the law and that the conspiracy was based on discriminatory hostility toward the protected class. Plaintiff's Complaint fails to allege that he is a member of a protected class. ( Id. )
Plaintiff asserts that it is "implicit" in his filing that he was invidiously discriminated against by the Defendants. (Doc. 8 at 6.) He was the victim of a vicious assault by Annis and was deprived medical care by Defendants, Defendants failed to report the assault and failed to respond to Plaintiff's request for medical care and wrongfully filed documents falsely reflecting that he was seen by medical providers. (Compl. ¶¶ 205-06). Plaintiff argues that his allegations are sufficient to state a claim for relief pursuant to § 1985 that is plausible on its face. (Doc. 8 at 7.)
Defendants reply that Plaintiff defends his 42 U.S.C. § 1985 conspiracy claim with the conclusory assertion that he has "sufficiently alleged all four criteria necessary for a section 1985 cause of action." (Doc. 11 at 4; ref. Doc. 8 at 7.) They assert that the Complaint alleges no facts demonstrating a deprivation of a constitutional right motivated by "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the ...