United States District Court, D. Arizona
REPORT AND RECOMMENDATION
G. MACDONALD, Magistrate Judge.
pending before the Court is Defendant Greene's Motion to
Dismiss for Failure to State a Claim Against Defendant Greene
(Doc. 9). Plaintiff filed her Response to Defendant
Greene's Motion to Dismiss (Doc. 17) and Defendant Greene
replied (Doc. 18). Pursuant to Rules 72.1 and 72.2 of the
Local Rules of Civil Procedure, this matter was referred to
Magistrate Judge Macdonald for Report and Recommendation. The
motion is fully briefed, and oral argument was held on April
19, 2016. Minute Entry 4/19/2016 (Doc. 23). The Magistrate
Judge recommends that the District Court grant
September 2005, Plaintiff Andrea Middleton began work as a
Tucson Police Department ("TPD") patrol officer.
Compl. (Doc. 1) at Â¶ 10. In early 2009, during the course of
her employment, Plaintiff met Defendant Frank Greene, a TPD
lieutenant. Id. at Â¶ 13. Plaintiff and Defendant
Greene began a consensual, romantic, dating relationship.
Id. at Â¶ 15. Plaintiff alleges that over time
Defendant Greene became physically abusive of her.
Id. at Â¶ 15. Plaintiff's Complaint (Doc. 1)
describes more than one incident in which Defendant Greene
was abusive toward Plaintiff. See id. Â¶Â¶ 16-27.
Ultimately, Plaintiff reported Defendant Greene's conduct
to TPD's Office of Internal Affairs ("OIA").
Compl. (Doc. 1) at Â¶ 28. Plaintiff further alleges misconduct
by Officer Greene throughout the internal affairs process, as
well as on the job mistreatment by him. See id. Â¶Â¶
STANDARD OF REVIEW
complaint is to contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief[.]" Rule 8(a), Fed.R.Civ.P. While Rule 8 does not
demand detailed factual allegations, "it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
"Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice." Id .; Pareto v. Fed. Deposit Ins.
Corp., 139 F.3d 696, 699 (9th Cir. 1998)
("conclusory allegations of law and unwarranted
inferences are not sufficient to defeat a motion to
is appropriate where a plaintiff has failed to "state a
claim upon which relief can be granted." Rule 12(b)(6),
Fed.R.Civ.P. "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.'" Ashcroft, 556 U.S. at 678, 129
S.Ct. at 1949 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007)). Further, "[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. The
plausibility standard is not akin to a probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully."
Id. (citations omitted).
ruling on a motion to dismiss, [the Court must] accept all
factual allegations in the complaint as true and construe the
pleadings in the light most favorable to the nonmoving
party." Association for Los Angeles Deputy Sheriffs
v. County of Los Angeles, 648 F.3d 986, 991 (9th Cir.
2011) (quoting Knievel v. ESPN, 393 F.3d 1068, 1072
(9th Cir. 2005)). "The court draws all reasonable
inferences in favor of the plaintiff." Id.
(citing Newcal Industries, Inc. v. Ikon Office
Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008)). This
Court is not required, however, to accept conclusory
statements as a factual basis. See Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955,
1964, 167 L.Ed.2d 929 (2007); Mann v. City of
Tucson, 782 F.2d 790, 793 (9th Cir. 1986)
("Although we must, in general, accept the facts alleged
in the complaint as true, wholly vague and conclusory
allegations are not sufficient to withstand a motion to
dismiss."); See also Soremekun v. Thrifty
Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)
("Conclusory, speculative testimony in affidavits and
moving papers is insufficient to raise genuine issues of fact
and defeat summary judgment").
Greene seeks dismissal of this cause of action, because
"there is no individual liability under Title
VII[.]" Def. Greene's Mot. to Dismiss (Doc. 9). In
opposition to Defendant Greene's motion, Plaintiff relies
on Jendusa v. Cancer Treatment Centers of Am., Inc.,
a district court case from the Northern District of Illinois.
868 F.Supp. 1006 (N.D. Ill. 1994). Plaintiff argues that
Miller was wrongly decided and urges this Court to
adopt the reasoning cited in Jendusa to find
Defendant Greene can be held individually liable under Title
VII. Pl.'s Response (Doc. 17).
Ninth Circuit Court of Appeals has expressly recognized that
"[t]here is no reason to stretch the liability of
individual employees beyond the respondeat superior principle
intended by Congress." Miller v. Maxwell's
Intern. Inc., 991 F.2d 583, 588 (9th Cir. 1993). In
Miller, the plaintiff alleged sex and age
discrimination under Title VII, 42 U.S.C. Â§Â§ 2000e, et
seq. and the Age Discrimination in Employment Act of
1967 ("ADEA"), 29 U.S.C. Â§Â§ 269, et seq.
against her employer and six individual defendants.
Miller, 991 F.2d at 584. The Miller court
held, "[u]nder our interpretation of Padway and
the Title VII and ADEA statutory schemes, Miller's claims
against the defendants in their individual capacities
properly were dismissed for failure to state a claim."
Id. As such, in this circuit, supervisory employees
are protected from liability in their individual capacities.
Id. at 587.
district judge may not respectfully (or disrespectfully)
disagree with his learned colleagues on his own court of
appeals who have ruled on a controlling legal issue, or with
Supreme Court Justices writing for a majority of the
Court." Hart v. Massanari, 266 F.3d 1155, 1170
(9th Cir. 2001). "Binding authority within this regime
cannot be considered and cast aside; it is not merely
evidence of what the law is... caselaw on point is
the law." Id. (emphasis in original); see
also Zuniga v. United Can Co., 812 F.2d 443,
450 (9th Cir. 1987) ("District courts are... bound by
the law of their own circuit"). To his credit,
Plaintiff's counsel conceded at oral argument that
Miller is binding authority upon this Court, but
indicated Plaintiff's desire to preserve the record. In
light of binding Ninth Circuit precedent, Defendant
Greene's Motion to Dismiss for Failure to State a Claim
(Doc. 9) is granted.
reasons delineated above, the Magistrate Judge recommends
that the District Judge enter an order GRANTING to ...