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Ferreira v. Arpaio

United States District Court, D. Arizona

July 25, 2016

Shari Ferreira, et al., Plaintiffs,
Joseph M Arpaio, et al., Defendants.



         Pending before the Court is Defendants’[1] Motion to Dismiss, (Doc. 15), brought in response to Plaintiff Shari Ferreira’s Third Amended Complaint (“TAC”), filed on December 2, 2015. (Doc. 12). The motion has been fully briefed, and oral argument was heard on July 20, 2016. The Court now rules on the motion.


         The Court need not set forth a full recitation of the facts underlying this matter. For purposes of adjudicating Defendants’ pending Federal Rule of Civil Procedure 12 (b)(6) motion, a brief recital of the following facts-taken as true from the TAC-is sufficient. Plaintiff brought this civil rights action on behalf of decedent Zachary Daughtry in her capacity as personal representative of the estate. (Doc. 12 at 1). Daughtry was initially arrested on December 12, 2013, and booked into the 4th Avenue Jail complex. (Id. at 8). Over the following months, Daughtry “had several assignments and transfers” to different facilities, but was ultimately transferred back to the 4th Avenue Jail on July 6, 2014. (Id.). Between his initial booking and July 6, Daughtry had been referred to “Psychiatric Services” on several occasions in light of “medical and mental health issues that required ongoing medical and psychological treatment.” (Id.).

         On July 9, 2014, fellow inmate Defendant Ryan Bates[2] was placed in a cell with Daughtry after Bates was discovered in a restricted area of the 4th Avenue Jail. (Doc. 12 at 9 ¶ 42-43). At approximately 2200 hours, officers were “escorting medical personnel and conducting a general headcount, ” and passed by Daughtry’s cell. (Id. at 12 ¶ 67). When the officers passed by, they observed Bates standing over Daughtry, who was unresponsive and visibly bleeding from the head and face. (Id.). Daughtry received medical treatment on-site, and was subsequently transported to Banner Good Samaritan Hospital “with life threatening injuries.” (Id. at 12-13). Daughtry suffered “multiple facial fractures, major head injuries including orbital fractures, nose fractures, a broken jaw, internal injuries, a subdural hematoma to the brain with brain bleed, and severe lacerations to his head and left ear.” (Id. at 13). On July 20, 2014, Daughtry passed away from his injuries. (Id. at 15 ¶ 76).

         This matter, initially brought in Maricopa County Superior Court, was removed on September 16, 2015. (Doc. 1). The Complaint, thrice amended, alleges claims of negligence, gross negligence, wrongful death, and constitutional violations under Title 42 U.S.C. § 1983 (2012). On December 21, 2015, Defendants filed the pending motion to dismiss. The motion has been fully briefed, (Docs. 15, 34, 38), and oral argument was heard on July 20, 2016. Having set forth the pertinent factual and procedural background, the Court turns to Defendants’ motion.


         To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Fed.R.Civ.P. 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief, ” so that the defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint must also contain sufficient factual matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Facial plausibility exists if the pleader sets forth factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal “probability, ” but requires more than a sheer possibility that a defendant 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. (citing Twombly, 550 U.S. at 557).

         Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader’s obligation to provide the grounds for relief requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Rule 8(a)(2) “requires a ‘showing, ’ rather than a blanket assertion, of entitlement to relief, ” as “[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1202, pp. 94, 95 (3d ed. 2004)). Thus, Rule 8’s pleading standard demands more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

         The Court must construe the facts alleged in the complaint in the light most favorable to the drafter and must accept all well-pleaded factual allegations as true, Shwarz, 234 F.3d at 435, Cafasso, 637 F.3d at 1053, but need not accept as true legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986).


         Defendants’ motion, (Doc. 15), asserts several grounds for dismissal, contending that: (1) Defendants cannot be held liable for mere negligence pursuant to A.R.S. § 12-820.02 (A)(4); (2) Plaintiff failed to name or serve certain Defendants with a Notice of Claim (“Notice”), as required by A.R.S. § 12-821.01; and (3) the TAC fails to state a plausible claim against certain Defendants. The Court will address each of the arguments in turn.[3]

         A. Plaintiff’s Negligence Claim

         Count One of the TAC asserts a claim of “[g]ross [n]egligence and [n]egligence against [a]ll Defendants.” (Doc. 12 at 16). “A.R.S. § 12-820.02 (A)(4) requires a showing of ‘gross negligence’ in order for a public entity or employee to be liable for ‘an injury caused by a prisoner to any other prisoner.’” Murphy v. County of Yavapi, No. CV-04-1861-PCT-DGC, 2006 U.S. Dist. LEXIS 63732, at *21-22 (D. Ariz. Aug. 23, 2006) (citation omitted). A.R.S. § 12-820 (5) defines “prisoner” as “a person incarcerated while awaiting sentence or while serving a sentence imposed by a court of law.”

         Plaintiff does not contend that Defendant Bates’ and Daughtry’s status is anything other than “prisoner” as defined by the statute, and “do[es] not contest that, for purposes of [the] state law claims for relief, the appropriate standard of culpability is that of gross negligence.” (Doc. 34 at 10) Accordingly, to the extent the TAC alleges a claim of negligence against Defendants, it is hereby dismissed, with prejudice.

         B. Compliance with A.R.S. § 12-821.01

         The motion next argues that Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt, Hovanec, Huber, Johnson, Smith, and Wade were not named in, or served with a Notice, as is required by A.R.S. § 12-821.01. (Doc. 15 at 8-10). Defendants further assert that because the state law claims are barred for failure to comply with the notice of claim statute, all vicarious liability claims asserted against Defendants Arpaio and Maricopa County also fail.[4] (Doc. 38 at 8).

         The Court must first address whether it may entertain Defendants’ argument, which relies on documentary evidence outside of the TAC. On a motion to dismiss for failure to state a claim, the scope of review is generally “limited to the contents of the complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citing Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003)). However, the Court may also consider any evidence upon which the complaint “necessarily relies, ” which is satisfied where: “(1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Id. (citing Branch v. Tunnell, 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)). Having reviewed the TAC and the Notice attached to Defendants’ motion, (Doc. 15-1 at 2), the Court finds that the TAC necessarily relies on the Notice.

         First, the TAC explicitly refers to the document, as it alleges that “Plaintiff satisfied the provisions of A.R.S. § 12-821.01 by serving a notice of claim more than 60 (sixty) days prior to the date of the filing of this complaint, ” and that certain “Defendants denied the claim” while “[o]ther [D]efendants have not responded to the notice of claim.” (Doc. 12 at 4). Second, the Notice is central to Plaintiff’s claim. As discussed fully infra, Arizona law mandates that any person who has a claim against a public employee must file a Notice prior to filing suit. A.R.S. § 12-821.01 (A). Failure to strictly comply with the statute’s requirements results in preclusion of a plaintiff’s claims. Simon v. Maricopa Med. Ctr., 234 P.3d 623, 631 (Ariz.Ct.App. 2010). The importance the Arizona legislature has placed on compliance coupled with the harsh penalty for noncompliance make this procedural prerequisite central to Plaintiff’s civil rights claims against public employees. Finally, neither party questions the authenticity of the Notice attached to Defendants’ motion. Accordingly, the TAC necessarily relies upon the Notice, and may consider it. See Mitchell v. City of Flagstaff, CV 11-8140-PCT-FJM, 2011 U.S. Dist. LEXIS 133766, at *3 (D. Ariz. Nov. 18, 2011) (considering a Notice in adjudicating a Rule 12(b)(6) motion to dismiss).

         As noted supra, prior to filing suit in state or federal court, Arizona law requires that “[p]ersons who have claims against a . . . public employee shall file claims with the person or persons authorized to accept service for the . . . public employee as set forth in the Arizona rules of civil procedure.” A.R.S. § 12-821.01 (A); Simon, 234 P.3d at 629. The Notice must be submitted “within one hundred eighty days after the cause of action accrues, ” and must contain a statement of the facts that establish the basis for liability and an amount for which the claim can be settled. A.R.S. § 12-821.01 (A). This allows “the public entity to investigate and assess liability, permit the possibility of settlement prior to litigation, and to assist the public entity in financial planning and budgeting.” Martineau v. Maricopa County, 86 P.3d 912, 915-16 (Ariz.Ct.App. 2004). Accrual of a cause of action occurs “when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, instrumentality or condition that caused or contributed to the damage.” A.R.S. § 12-821.01 (B).

         “[S]trict compliance with A.R.S. § 12-821.01 (A) is required.” Simon, 234 P.3d at 629 (citing Falcon ex. rel. Sandoval v. Maricopa County, 144 P.3d 1254, 1256 (Ariz. 2006)). “Substantial compliance” is insufficient, even if the defendants have “actual notice of the claim.” Id. (citation omitted). Should a plaintiff fail to file a Notice within the statutory time limit, her “claim is barred by statute.” Falcon, 144 P.3d at 1256 (citing Salerno v. Espinoza, 115 P.3d 626, 629 (Ariz.Ct.App. 2005)); see also Crum v. Superior Court, 922 P.2d 316, 317 (Ariz.Ct.App. 1996) (failure to include all claims and a settlement amount in the Notice resulted in preclusion).

         Plaintiff’s TAC alleges claims against Maricopa County, Maricopa County Sheriff Joeseph M. Arpaio, M.D. Alvarez, and Deputy Sheriffs Cormier, Hewitt, Hovanec, Huber, Hansen, Johnson, Wade, Smith and Garcia. The TAC refers to the individually named Deputy Sheriffs and M.D. Alvarez as employees of either Maricopa County or Maricopa County Sheriff Joeseph Arpario. (Doc. 12 at 3-5). Arizona courts have repeatedly held that to comply with Arizona’s notice of claim statute, a prospective plaintiff must furnish a copy of the Notice on “both the employee individually and to his employer.” Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz.Ct.App. 2007) (citation omitted); Hendershott v. Babeu, 2015 Ariz.App. Unpub. LEXIS 372, at *11 (Ariz.Ct.App. March 24, 2015) (citation omitted); Dana v. City of Yuma, 2011 Ariz.App. Unpub. LEXIS 1085, at *14 (Ariz.Ct.App. Aug. 16, 2011); Dimmig v. Pima County, 2009 Ariz.App. Unpub. LEXIS 1520, at *5 (Ariz.Ct.App. Oct. 27, 2009); Havasupai Tribe v. Ariz. Bd. of Regents, 204 P.3d 1063, 1080 (Ariz.Ct.App. 2008); Valenzuela v. City of Phoenix Police Dep’t, 2007 Ariz.App. Unpub. ...

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