United States District Court, D. Arizona
DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE.
before the Court is Defendants' Motion to Dismiss Second
Amended Complaint. (Doc. 25.) The motion is fully
briefed. For the following reasons, Defendants'
motion is granted.
Carol Lewis was injured in December 2014 during the course of
her employment with the State of Arizona. (Doc. 22, ¶
12.) She filed a timely claim for benefits under the Arizona
Workers' Compensation Act, which was accepted as
compensable on December 24, 2014. (Id., ¶¶
14-15.) In January 2015, Lewis was referred to Dr. Mark Wang
for a medical evaluation. (Id., ¶ 17.) In a
report provided to Defendants, Dr. Wang recommended spinal
surgery. (Id., ¶ 20.) Lewis agreed to the
surgery, which was scheduled for February 24, 2015.
(Id., ¶¶ 22-23.)
Arizona Department of Administration-Risk Management (Risk
Management) administers workers' compensation benefits
for State employees. (Id., ¶ 7.) Risk
Management contracted with case review specialist Mary Bulian
to review Lewis' claim. (Id., ¶ 24.) Bulian
recommended against Dr. Wang's medical opinion.
(Id., ¶ 25.) Based on Bulian's
recommendation, Defendant Imra Mendoza, a Risk Management
claim adjuster, informed Lewis and Dr. Wang on February 23,
2015 that the surgery was not authorized. (Id.,
¶¶ 3, 28.) Lewis alleges that Defendant Julia
Lowery, another Risk Management claim adjuster, participated
in this decision, and that Defendant Sydney Standifird, as
Lowery and Mendoza's manager and supervisor, agreed with,
authorized, and approved it. (Id., ¶¶ 31,
35-36.) Risk Management later authorized the surgery, which
Lewis received on May 26, 2015. (Id., ¶ 50;
Doc. 33 at 4.) Lewis alleges, however, that the delay caused
her permanent physical pain and deficits, emotional distress,
and economic harm. (Doc. 22, ¶ 51.)
March 28, 2016, Lewis brought an action pursuant to 42 U.S.C.
§ 1983 in Maricopa County Superior Court alleging
violations of the procedural and substantive due process
guarantees of the Fourteenth Amendment,  which was later
removed to this Court. (Doc. 1.) Lewis filed two amended
complaints. (Docs. 14, 22.) Defendants now move to dismiss
the Second Amended Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). (Doc. 25.)
analyzing a complaint for failure to state a claim to relief
under Rule 12(b)(6), the well-pled factual allegations are
taken as true and construed in the light most favorable to
the nonmoving party. Cousins v. Lockyer, 568 F.3d
1063, 1067 (9th Cir. 2009). Legal conclusions couched as
factual allegations are not entitled to the assumption of
truth, Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009),
and therefore are insufficient to defeat a motion to dismiss
for failure to state a claim, In re Cutera Sec.
Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). Nor is the
court required to accept as true “allegations that
contradict matters properly subject to judicial notice,
” or that merely are “unwarranted deductions of
fact, or unreasonable inferences.” Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001). To avoid dismissal, the complaint must plead
sufficient facts to state a claim to relief that is plausible
on its face. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). This plausibility standard “is not
akin to a ‘probability requirement, ' but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 556). “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 Twombly,
550 U.S. at 557.)
1983 provides a cause of action for those who have been
deprived of their constitutional rights by persons acting
under color of law. 42 U.S.C. § 1983. It is a mechanism
“for vindicating federal rights elsewhere conferred,
” and ''is not itself a source of substantive
rights.'' Thornton v. City of St. Helens,
425 F.3d 1158, 1164 (9th Cir. 2005) (internal quotations and
citation omitted). To succeed on a claim under § 1983, a
plaintiff must show “(1) that a right secured by the
Constitution or the laws of the United States was violated,
and (2) that the alleged violation was committed by a person
acting under color of State law.” Long v. Cty. of
L.A., 442 F.3d 1178, 1185 (9th Cir. 2006).
claims that Defendants, acting under color of state law by
virtue of their employment with Risk Management, deprived her
of substantive and procedural due process rights guaranteed
by the Fourteenth Amendment. “A threshold requirement
to a substantive or procedural due process claim is the
plaintiff's showing of a liberty or property interest
protected by the Constitution.” Wedges/Ledges of
Cal., Inc. v. City of Phx., 24 F.3d 56, 62 (9th
Cir. 1994). “Only after finding the deprivation of a
protected property interest, ” does the Court
“look to see if the State's procedures comport with
due process.” American Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 59 (1999). Lewis' allegations
do not clear this threshold.
claims that she had a vested and constitutionally protected
property interest in the surgery recommended by Dr. Wang.
“To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for
it. . . . [She] must, instead, have a legitimate claim of
entitlement to it.” Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564, 577 (1972). In the context of
workers' compensation benefits, when state law
“expressly limits an employee's entitlement”
to only those medical treatments that are determined to be
reasonable, “an employee is not entitled to payment for
all medical treatment once the employer's
initial liability is established[.]” American
Mfrs., 526 U.S. at 60 (emphasis in original). Arizona
law provides that “every injured employee shall receive
medical, surgical and hospital benefits or other treatment .
. . reasonably required at the time of the injury,
and during the period of disability.” A.R.S. §
1062(A) (emphasis added). Lewis, therefore, did not have a
vested property interest in the surgery recommended by Dr.
Wang until the surgery was determined to be reasonably
Lewis does not allege she was denied surgical
benefits. Rather, she complains that Risk Management delayed
authorization for it. By her own admission, Risk Management
later authorized surgical benefits and she received the
surgery a few months after initially scheduled.
argues that Defendants may be held liable for due process
violations under the so-called “state-created
danger” doctrine. (Doc. 33 at 10-11.) The doctrine
applies when a “state official participated in creating
a dangerous condition, and acted with deliberate indifference
to the known or obvious danger in subjecting the plaintiff to
it.” L.W. v. Grubbs, 92 F.3d 894, 900 (9th
Cir. 1996). However, a state official's failure to act
generally does not deprive one of a liberty or property
interest that would trigger the protections of the Due
Process Clause. DeShaney v. Winnebago Cty. Dep't of
Soc. Servs., 489 U.S. 189, 196 (1989). Defendants did