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Petty v. State

United States District Court, D. Arizona

December 7, 2015

Penny Petty, et al., Plaintiffs,
Arizona, State of, et al., Defendants.


Douglas L. Rayes United States District Judge

Before the Court is Defendants’ State of Arizona, Arizona Department of Corrections (“ADOC”), Janice K. Brewer, Charles L. Ryan, and Christopher Moody’s Motion to Dismiss Plaintiffs’ First Amended Complaint. (Doc. 17.) The motion is fully briefed.[1] For the following reasons, Defendants’ motion is granted in part.


In April 1988, Gordon Emil Lee began his sentence with the ADOC at ASPC-Lewis. (Doc. 9, ¶ 13.) Lee began his term in protective custody, segregated from the general prison population, and remained there for more than two decades. (Id., ¶¶ 14-15.) Thereafter, Defendants removed Lee from protective custody and placed him in the general prison population, where he was repeatedly and violently assaulted by other inmates. (Id., ¶ 16.) As a result, Lee requested to be returned to protective custody several times. (Id., ¶ 17.) Charles Ryan, Director of the ADOC, and Christopher Moody, Warden of ASPC-Lewis, allegedly refused to take action to protect Lee and refused to place him back in segregation. (Id., ¶ 18.)

On July 4, 2015, Lee was attacked by several inmates and strangled to death. (Id., ¶¶ 20-21.) During the attack, the ASPC-Lewis staff were allegedly “inattentive or distracted from duty . . .; slept through the attack; and/or failed to conduct an inmate count or inspection[.]” (Id., ¶ 21.)

Penny Petty, the personal representative for the Estate of Gordon Emil Lee, as well as Lee’s surviving children, Shenison Lee and Kyle Lee, filed this suit against the State of Arizona, former Arizona Governor Janice Brewer, ADOC Director Charles Ryan, and Warden of ASPC-Lewis Christopher Moody. (Id.) In Counts I-IV, Plaintiffs bring claims for negligence, negligence per se, negligent training and supervision, and wrongful death. (Id., ¶¶ 25-42.) In Count V, Plaintiffs seek damages under 42 U.S.C. § 1983 arising from Defendants’ deliberate indifference to Lee’s safety, which resulted in his death. (Id., ¶¶ 43-44.) Defendants collectively move to dismiss the First Amended Complaint.


To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although “a complaint need not contain detailed factual allegations . . . it must plead 'enough facts to state a claim to relief that is plausible on its face.'” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully. 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. (internal citations omitted) (quoting Twombly, 550 U.S. at 557).

When analyzing a complaint for failure to state a claim under Rule 12(b)(6), A[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a presumption of truthfulness, and “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss." Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).


I. Count One - Negligence, Count Three - Negligent Training and Supervision, Count Four - Wrongful Death

Defendants argue that under A.R.S. § 31-201.01(F), Plaintiffs’ claims can run only against the state, and that under A.R.S. § 12-820.02(A)(4), the individual Defendants are entitled to qualified immunity for their conduct unless they were grossly negligent. Defendants also point out that Plaintiffs have sued them in their official capacities, not their individual capacities. Plaintiffs argue that these statutes do not apply because they allege that Defendants acted outside the scope of their legal duty and employment. (Doc. 19 at 16.)

Under Arizona law, a public employee is not liable for an injury caused by one prisoner to another prisoner unless the employee “acting within the scope of the public employee’s employment intended to cause injury or was grossly negligent.” A.R.S. § 12-820.02(A)(4). Further, “[a]ny and all causes of action which may arise out of tort caused by the director, prison officers or employees of the department, within the scope of their legal duty, shall run only against the state.” A.R.S. § 31-201.01(F). Both statutes protect state employees for conduct within the scope of their employment or legal duty.

“Conduct falls within the scope [of employment] if it is the kind the employee is employed to perform, it occurs within the authorized time and space limits, and furthers the employer’s business even if the employer has expressly forbidden it.” Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Trust of Phx., Inc., 5 P.3d 249, 254 (Ariz.Ct.App. 2000). Whether an employee is acting within the scope of his employment is a question of fact. Smith v. Am. Exp. Travel Related Servs. Co., Inc., 876 P.2d 1166, 1171 (Ariz.Ct.App. 1994). Thus, Plaintiffs only need to allege facts that, if taken as true, would support a reasonable ...

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