United States District Court, D. Arizona
G. Campbell United States District Judge.
asserts claims against several Navajo Nation police officers
(“Individual Defendants”) for unlawful arrest and
excessive force, and against the United States for negligent
supervision and other torts. Doc. 1. The United States moves
to dismiss Plaintiff’s negligent supervision claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 8.
The motion is fully briefed (Docs. 14, 15) and no party
requests oral argument. The Court will grant the motion with
leave to amend.
allegations in the complaint are taken as true for purposes
of this motion. On November 20, 2014, Plaintiff called the
Navajo police because she wanted help removing someone from
her home. Doc. 1, ¶ 6. The Individual Defendants arrived
and entered Plaintiff’s home without permission. ¶
7. “Plaintiff was violently and injuriously grabbed by
the arm and forcibly removed from her home, ” and the
Individual Defendants “wrongfully arrested Plaintiff,
without any reasonable belief that she had committed any
offense.” ¶ 8. One of the Individual Defendants
“shoved Plaintiff against the police car, pulled her
arm as high as he possibly could and caused Plaintiff to
suffer a painful bone fracture.” ¶ 9. Plaintiff
was never charged with any offense. ¶ 11. Plaintiff
alleges that the Individual Defendants were employed by a
federal contractor at the time of the incident and were
therefore federal employees for purposes of the Federal Tort
Claims Act (“FTCA”). ¶ 3.
first claim for relief asserts that “[t]he United
States is vicariously liable for the failure of the
Individual Defendants, as federal officers, to conform to
their legal duties as police officers.” ¶ 13. She
asserts that the United States failed to exercise care in
supervising, training, and hiring its officers. ¶ 14.
She contends that this failure directly caused her injuries.
successful Rule 12(b)(6) motion must show either that the
complaint lacks a cognizable legal theory or fails to allege
facts sufficient to support its theory. Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
1990). A complaint that sets forth a cognizable legal theory
will survive a motion to dismiss as long as it contains
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). 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.” Id.
(citing Twombly, 550 U.S. at 556). “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. (citing Twombly, 550 U.S. at 556).
Humetewa recently dismissed a virtually identical claim
brought by the attorney now representing Plaintiff. Judge
FTCA actions “are governed by the law of the place
where the act or omission causing the injury occurred.”
Mundt v. United States, 611 F.2d 1257, 1259 (9th
Cir. 1980) (citing 28 U.S.C. § 1346(b)). For an employer
to be held liable for negligent supervision under Arizona
law, a plaintiff must demonstrate (1) that the employer knew
or should have known that the employee was not competent to
perform the assigned task and (2) that the employer’s
failure to supervise the employee caused the
plaintiff’s injury. See Rice v. Brakel, 233
Ariz. 140, 145 (Ariz.Ct.App. 2013) (citing Humana Hosp.
Desert Valley v. Superior Court, 154 Ariz. 396, 400
In the Complaint, Plaintiff only alleges that Defendant Toddy
was “an employee of a federal contractor under the
ISDEAA” and therefore “a federal employee under
the Federal Tort Claims Act.” (Doc. 1 at 1-2, ¶
3). He concludes that because Toddy was a federal employee
under the FTCA, the United States is “vicariously
liable for the failure of the Navajo Nation to conform to its
legal duty” to supervise Toddy. (Id. at 3,
These conclusive statements do not allege, or even suggest,
that the United States knew that Toddy was not competent to
perform his law enforcement duties. As such, the facts as
pled in the Complaint do not allow the Court to reasonably
infer that the United States is liable for Toddy’s
alleged misconduct, and therefore fall far short of the
plausibility standard set forth in Iqbal and
Twombly. See Iqbal, 556 U.S. 662, 678
(citing Twombly, 550 U.S. at 556). Nor does
Plaintiff sufficiently allege the causation element with the
conclusory assertion that the United States’ failure to
supervise Toddy “caused Defendant Toddy’s abuse
of Plaintiff and the damages suffered by Plaintiff.”
(Doc. 1 at 3, ¶ 9). A bare recitation of the legal
elements of a claim will not save the claim from dismissal.
Slim v. United States, et al., No. 15-CV-00785-DJH
(D. Ariz., Jan. 4, 2016) (Doc. 19 at 4-5).
claim in this case fails for similar reasons. Nowhere does
Plaintiff allege that the arresting officers were not
competent to perform their duties, that their employer knew
or should have known that they were not competent, or that
the employer failed to supervise or train them. The Court
declines Plaintiff’s invitation to ...