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McPeak v. State

United States District Court, D. Arizona

August 5, 2015

NIKEA McPEAK, Plaintiff,


H. RUSSEL HOLLAND, District Judge.

Motions to Dismiss

Defendants move to dismiss plaintiff's second amended complaint.[1] These motions are opposed.[2] Oral argument was requested and has been heard.


Plaintiff is Nikea McPeak. Defendants are the State of Arizona, the City of Chandler, Kristin Kidd, and Detective Daniel Coons.

In 2012, plaintiff, who was then 16 years old, was in the custody of the State of Arizona. Plaintiff "had a Juvenile Court appointed attorney, Lisa Timmes and a Juvenile Court appointed guardian ad litem, David Braun."[3] Plaintiff's CPS case worker was defendant Kidd.[4]

Sometime prior to April 24, 2012, plaintiff ran "away from CPS [Child Protective Services] care and custody."[5]

"[T]he Chandler Police Department was investigating allegations that [plaintiff] ha[d] been sexually abused by her father" as well as investigating whether plaintiff's mother had had "improper contact" with plaintiff "while she was in CPS care and custody...."[6] On April 24, 2012, plaintiff went to the Chandler Police Department "to voluntarily turn herself in to CPS care and custody"[7] and to be "interviewed by the Chandler Police Department... regarding her allegations of sexual abuse by her father...."[8] Plaintiff had arrived at the Chandler Police Department with an attorney who was not her court-appointed attorney and wanted that attorney to be present for the interview.[9] Defendant Coons contacted Kidd to advise her that plaintiff "was voluntarily at the police station."[10] Because plaintiff refused to be interviewed without counsel present, Detective Kee attempted to contact Timmes but was unable to reach her "so Detective Kee did not conduct the forensic interview of [plaintiff] at that time."[11] Kee then "turned custody of [plaintiff] over to... Kidd who had appeared at the police department to transport [plaintiff] to a foster home."[12] Plaintiff alleges that "[u]p to this point, [she] followed all instructions given to her by law enforcement and was compliant to all instructions given."[13]

"Kidd asked Detective Coons and another unknown police officer to search [plaintiff] which they did."[14] "They directed her to sit on the floor as they went through her possessions. She had a bag full of clothing that she had taken with her when she left her group home."[15] "While sitting on the floor she had in her hands her iPod Touch."[16] Plaintiff alleges that at the time of this search, she "was not under arrest and was no longer in the custody and control of the Chandler Police Department. Her custody had been turned over to Kidd...."[17]

"Kidd... ordered [plaintiff] to give her the iPod. [Plaintiff] refused stating she did not want the case worker to take it from her."[18] "Detective Coons and an unknown police officer grabbed [plaintiff's] arms as she sat on the floor and Kidd took the iPod from her."[19] Plaintiff alleges that she "was grabbed by the arms, the iPod taken, and then she was handcuffed by Detective Coons and the unknown police officer as she sat on the floor."[20] Plaintiff alleges that "she was not given any other options by those involved" and that she "was not passively resisting attempts to communicate with her...."[21]

"Kidd then asked the officers to leave [plaintiff] in handcuffs, with her hand[s] behind her back and [she was] placed into the back seat of a police car[] for transport to her group home."[22] "Kidd told Detective Coons and the unknown police officer that she did not feel comfortable being alone with" plaintiff.[23] Plaintiff's "handcuffs were not removed until she was inside the foster home. [She] was handcuffed for over an hour."[24]

"Kidd took [plaintiff's] clothing bag and pulled out one pair of underwear, short[s], and a shirt and gave them to [plaintiff]."[25] Plaintiff "had no other clothing than what she had on her back."[26] Kidd returned plaintiff's clothing bag about one month later but did not return plaintiff's iPod until plaintiff turned eighteen.[27]

On July 10, 2014, plaintiff commenced this action in state court. On January 7, 2015, this action was removed to this court. Plaintiff's second amended complaint contains six counts. In Count One, plaintiff asserts gross negligence, negligence, and breach of fiduciary duties claims against Kidd and the State. In Count Two, plaintiff asserts a negligent hiring, retention, and supervision claim against the State. In Count Three, plaintiff asserts a negligence claim against the City and Coons. In Count Four, plaintiff asserts a false imprisonment claim against Kidd and Coons. In Count Five, plaintiff asserts an assault and battery claim against Kidd and Coons and a negligent training claim against the City. In Count Six, plaintiff asserts § 1983 substantive due process, false imprisonment, and excessive force claims against Kidd and Coons.

Pursuant to Rules 8(a) and 12(b)(6), Federal Rules of Civil Procedure, defendants now move to dismiss plaintiff's claims.


"Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that each claim in a pleading be supported by a short and plain statement of the claim showing that the pleader is entitled to relief....'" Landers v. Quality Communications, Inc., 771 F.3d 638, 640 (9th Cir. 2014) (quoting Fed.R.Civ.P. 8(a)(2)). "Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires not only fair notice of the nature of the claim, but also grounds on which the claim rests.'" Zixiang Li v. Kerry, 710 F.3d 995, 998 (9th Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3 (2007)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. at 999 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim is facially plausible when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id . (quoting Iqbal, 556 U.S. at 678). "The plausibility standard requires more than the sheer possibility or conceivability that a defendant has acted unlawfully." Id . "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id . (quoting Iqbal, 556 U.S. at 678). "Dismissal under Rule 12(b)(6) is proper only when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory." Id.

Rule 8 Argument

The State and Kidd argue that plaintiff's second amended complaint should be dismissed in its entirety because it does not comply with Rule 8(a)(2). They argue that plaintiff has not set forth a short, plain statement as to each of her claims. For example, they point out that in Count One, plaintiff appears to be asserting three separate claims: 1) a breach of fiduciary duty claim, 2) a gross negligence claim, and 3) a negligence claim. The State and Kidd also argue that plaintiff has failed to delineate which defendant has engaged in what conduct, instead lumping the defendants together as a group. And, they point out that the second amended complaint contains empty paragraphs (¶¶ 58, 65, 67 & 70), in which nothing is alleged.

Although plaintiff's second amended complaint is not a model of clarity, it does not violate Rule 8(a)(2). Plaintiff has set forth her causes of action and has alleged some factual support for her claims. It is also possible to tell what conduct she alleges each defendant engaged in.

Count One

In Count One, plaintiff asserts negligence and gross negligence claims against Kidd and the State. "To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the defendant of that standard; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages." Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). "In order to state a claim for gross negligence, [p]laintiff must allege that [d]efendants acted with reckless indifference to [p]laintiff's safety." Morgan v. Ariz., Case No. CV 06-346-TUC-FRZ (JCG), 2007 WL 2808477, at *9 (D. Ariz. Sept. 27, 2007). "A person is recklessly indifferent if he or she knows, or a reasonable person in his or her position ought to know: (1) that his action or inaction creates an unreasonable risk of harm; and (2) the risk is so great that it is highly probable that harm will result." Id.

Kidd argues that in order to state plausible negligence and gross negligence claims the harm that the plaintiff suffered must be some kind of physical harm. Plaintiff alleges that she suffered "damages [and] endured mental and emotional distress" as a result of Kidd's and the State's alleged negligence.[28] But, she has not alleged that she suffered any physical injury.

"In a case of simple negligence... a plaintiff need not prove a physical injury occurred, but only that she suffered actual damages as a result of the defendant's negligent conduct." Rand v. City of Glendale, Case No. 1 CA-CV 07-0722, 2008 WL 5383363, at *8 (Ariz.Ct.App. Dec. 26, 2008). Therefore, plaintiff's negligence claim survives Kidd's motion to dismiss. If plaintiff's negligence claim survives as to Kidd, which it does, it survives as to the State as well because Kidd was acting within the scope of her employment. See Engler v. Gulf Interstate Engineering, Inc., 280 P.3d 599, 601 (Ariz. 2012) (internal citations omitted) ("The doctrine of respondeat superior generally holds an employer vicariously liable for the ...

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