United States District Court, D. Arizona
PAUL G. ROSENBLATT, District Judge.
Before the Court are Defendants' motion to dismiss and motion to strike. (Docs. 3, 11.) Plaintiffs filed responses in opposition. (Docs. 7, 13.) For the reasons set forth herein, the motions will be granted in part.
Plaintiffs are Veronica Vacaneri and Joel Smith Jr. individually and as the parents of Joel Smith III, who died on September 13, 2012, after being shot by Deputy Tehran Ryles of the Maricopa County Sheriff's Office. Plaintiffs filed a complaint on September 12, 2013, asserting five causes of action: negligence, assault, battery, negligence per se, and federal civil rights violations. (Doc. 1-1.) Defendants include Deputy Ryles, Maricopa County, the Maricopa County Sheriff's Office ("MCSO"), Sheriff Joseph Arpaio, and the Town of Guadalupe. ( Id. )
1. Motion to Dismiss
A. Failure to comply with A.R.S. § 12-821.01
Defendants contend that Plaintiff Joel Smith Jr.'s state law claims against Deputy Ryles, Sheriff Arpaio, and the Town of Guadalupe are barred because Smith Jr. failed to comply with Arizona's notice of claims statute. The Court agrees.
On March 7, 2013, Smith Jr. served a notice of claim on the Maricopa County Board of Supervisors, the Maricopa County Sheriff, and a "John Doe" deputy. (Doc. 7-1, Ex. A.) He did not file and serve a notice of claim on Sheriff Arpaio or Deputy Ryles, or on the Town of Guadalupe. Plaintiff Vacaneri, however, did timely serve notices of claim on Deputy Ryles, Sheriff Arpaio, Maricopa County, and the Town of Guadalupe.
Before suing a public entity for damages, a plaintiff must file a notice of claim "with the person or persons authorized to accept service for the public entity... as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues." A.R.S. § 12-821.01(A). Arizona cases have made it clear that a "claimant who asserts that a public employee's conduct giving rise to a claim for damages was committed within the course and scope of employment must give notice of the claim to both the employee individually and to his employer." Crum v. Superior Court In and For County of Maricopa, 186 Ariz. 351, 352, 922 P.2d 316, 317 (App. 1996); Johnson v. Superior Court, 158 Ariz. 507, 763 P.2d 1382 (App. 1988) (explaining that "both public entities and their employees are entitled to notice of claims against them"); see Dillon v. Arizona, No. CV-08-796-PHX-GMS, 2008 WL 4628475, at *2 (D.Ariz. October 17, 2008) (finding state claims barred where "Plaintiffs still failed to give notice to the individual employees as required in the notice of claims statute"); Norby v. City of Tombstone, 2008 WL 5068835, at *3 (D.Ariz. December 1, 2008) ("A Notice of Claim as required by A.R.S. § 12-821.01.A. having not been timely served on individual Defendants, the state law claims against the individual Defendants acting in their official capacities are barred.").
Plaintiffs contend that Vacaneri's properly-served notices of claim are sufficient to establish compliance with A.R.S. § 12-821.01(A) for Plaintiff Smith Jr. because through her notices Sheriff Arpaio, Deputy Ryles, and the Town of Guadalupe received actual notice of Smith Jr.'s claims and therefore the purpose of the statute was fulfilled. (Doc. 7 at 5-6.) The Court disagrees. Arizona cases emphasize that "[a]ctual notice and substantial compliance do not excuse failure to comply with the statutory requirements of A.R.S. § 12-821.01(A)." Falcon ex rel. Sandoval v. Maricopa County, 213 Ariz. 525, 527, 144 P.3d 1254, 1256 (2006); see Nored v. City of Tempe, 614 F.Supp.2d 991, 996-97 (D.Ariz. 2008) ("The Arizona Court of Appeals has repeatedly held that the doctrines of substantial compliance and actual notice of a claim may not be applied to allow a suit to proceed when a plaintiff has not strictly complied with the substantive terms of the statute.").
Because Plaintiff Smith Jr. did not comply with A.R.S. § 12-821.01(A), his state law claims against Deputy Ryles, Sheriff Arpaio, and the Town of Guadalupe are dismissed.
B. Claims Plaintiffs concede must be dismissed
In response to Defendants' motion to dismiss, Plaintiffs clarify that in Causes of Action One through Four they are not bringing survival claims but a single wrongful death claim under A.R.S. § 12-611, for which assault, battery, and negligence serve as the wrongful acts. (Doc. 7 at 2-3.) Plaintiffs further concede that the claims against MCSO, a nonjural entity, see Braillard v. Maricopa County, 224 Ariz. 481, 487, 232 P.3d 1263, 1269 (App. 2010), must be dismissed and that Maricopa County is not vicariously liable for actions of Deputy Ryles and Sheriff Arapaio, see Fridena v. Maricopa County, 18 Ariz.App. 527, 504 P.2d 58, 61 (App. 1972). ( Id. at 6.) Therefore, Plaintiffs' claims against MCSO and their respondeat superior claims against Maricopa County will be dismissed with prejudice. Finally, Plaintiffs acknowledge ...