United States District Court, D. Arizona
James W. Denby et al., Plaintiffs,
City of Casa Grande, et al., Defendants.
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE.
James W. Denby and Wilma J. Logston resided at 116 West 10th
Street in Casa Grande, Arizona (hereinafter, “the
residence”). On December 17, 2014, the Casa Grande
Police Department (“CGPD”) responded to a
domestic disturbance down the block from Plaintiffs'
residence, involving Abram Ochoa. After determining that
Ochoa was inside the residence, the CGPD attempted to
communicate with him through a loud speaker PA system. The
officers declined Plaintiff Denby's son's and
Ochoa's girlfriend's offers to assist with convincing
Ochoa to leave the residence voluntarily. Within minutes of
arriving at the residence, the CGPD requested the assistance
of the Pinal County Regional SWAT (“SWAT”). While
establishing a perimeter around the residence, CGPD Officer
Engstrom reported seeing movement under a tarp covering a car
in the backyard, but did not investigate it further.
arrival, the SWAT team used an armored vehicle known as a
“Bearcat” to drive over a chain link fence and
into the front of the residence, breaking the windows and
front door. Upon execution of a search warrant, a medium
robot was deployed into the home. When further attempts to
communicate with Ochoa were unsuccessful, SWAT utilized
pepper spray and tear gas canisters, and a noise flash
divisionary device (“flash-bang devices”) in an
attempt to force Ochoa from the residence. A second robot
deployed into the home was unable to locate Ochoa.
utilized two additional flash-bang devices to assist their
entrance into the residence. During the search of the
residence, SWAT team members destroyed furniture, windows,
toilets, televisions, artwork, and antiques. After Ochoa was
not found inside the residence, SWAT and CGPD decided to
search the remainder of the residence's property. Ochoa
was found hiding underneath the tarp covering a car in the
backyard-the same tarp that Officer Engstrom had reported
movement under five hours earlier, but failed to investigate.
their Amended Complaint (Doc. 31), Plaintiffs bring several
claims against the City of Casa Grande, Pinal County, and
several officers of both the CGPD and the Pinal County
Sheriff's Office including: excessive force in violation
of the Fourth Amendment (Count I); taking without just
compensation in violation of the Fifth Amendment (Count II);
failure to properly supervise and failure to train (Count
III); municipal liability for violation of constitutional
rights (Count IV); and failure to train and supervise (Count
V). (Doc. 31.) Counts I, III, and V are brought against the
City, County, and individual Defendant officers, while Counts
II and IV are brought against only the City and County.
and County Defendants have moved to dismiss the Amended
Complaint for two reasons: (1) all Defendants named in their
individual capacities are entitled to qualified immunity, and
(2) Plaintiff has failed to state a claim against the City
and County. (Doc. 51.) Defendant Paul Babeu has filed his own
motion to dismiss which incorporates the aforementioned
motion (Doc. 51), and includes additional arguments specific
to him as the former Pinal County Sheriff. (Doc. 58.)
survive a motion to dismiss, a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief” such that the
defendant is given “fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell Atl.
Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting
Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41,
47 (1957)). The Court may dismiss a complaint for failure to
state a claim under Federal Rule 12(b)(6) for two reasons:
(1) lack of a cognizable legal theory, and (2) insufficient
facts alleged under a cognizable legal theory. Balistreri
v. Pacificia Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A complaint must “state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal citation
omitted). Facial plausibility requires the plaintiff to plead
“factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” 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. (quoting
Twombly, 550 U.S. at 557). Although a complaint
“does not need detailed factual allegations, ” a
plaintiff must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
This requires “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
determine whether a government official is entitled qualified
immunity, a court must consider: (1) whether the official
violated the plaintiff's constitutional rights; and (2)
whether the right was clearly established at the time of the
incident. Morales v. Fry, 873 F.3d 817, 821 (9th
Cir. 2017) (citing al-Kidd, 563 U.S. at 731).
“A Government official's conduct violates clearly
established law when, at the time of the challenged conduct,
the contours of a right are sufficiently clear that every
reasonable official would have understood that what he is
doing violates that right.” al-Kidd, 563 U.S.
at 741 (citing Anderson v. Creighton, 483 U.S. 635,
640 (1987)). While a case directly on point is not required,
“existing precedent must have placed the statutory or
constitutional question beyond debate.” Id.
Clearly established law should not be defined at a
“high level of generality.” Id. at 742.
applicability of qualified immunity should be determined at
the earliest possible stage in the litigation. Hunter v.
Bryant, 502 U.S. 224, 227 (1991). Yet, deciding a motion
to dismiss on qualified immunity grounds “puts the
Court in the difficult position of deciding
‘far-reaching constitutional questions on a
non-existent factual record.'” Hernandez v.
Ryan, No. CV-09-2683-PHX-DGC, 2010 WL 4537975, at * 2
(D. Ariz. Nov. 3, 2010) (citing Kwai Fun Wong, 373
F.3d 952, 957 (9th Cir. 2004)). Such is the case here.
Plaintiffs pleaded approximately 130 factual allegations in
their Amended Complaint (Doc. 31); the Court finds that
resolution of Defendants' qualified immunity claims
requires further factual development. Because it is not
apparent on the face of the Amended Complaint, the Court
cannot dismiss any claims solely on the basis of qualified
immunity at this time. See Groten v. California, 251
F.3d 855, 851 (9th Cir. 2001).
to the sufficiency of the factual allegations in
Plaintiffs' Amended Complaint, the Court finds that while
it is indeed plausible that Defendants violated
Plaintiffs' constitutional rights, Plaintiffs' claims
are not sufficiently tied to the factual allegations pleaded
in the Amended Complaint. Because Plaintiffs must
“raise a right to relieve above the speculative level,
” formulaic recitations of the elements of the cause of
action and legal conclusions couched as factual allegations
will not suffice. Twombly, 550 U.S. at 555.
Moreover, Plaintiffs “may not lump the defendants
together under a team theory effort of liability but must
base each defendant's liability on his own
conduct.” Markham v. Pima Cty., No.
CV-16-134-TUC-JAS, 2017 WL 4676591, at *5 (D. Ariz. Aug. 22,
2017) (citing Chuman v. Wright, 76 F.3d 292, 295
(9th Cir. 1996)). In this respect, if Plaintiffs choose to
file a Second Amended Complaint, Plaintiffs must allege
sufficient facts that make it plausible that each
individual Defendant is liable for each constitutional
II of the Amended Complaint alleges that Defendants City of
Casa Grande and Pinal County violated the Fifth and
Fourteenth Amendments because “the property of
Plaintiffs was taken for public use without compensation and
Plaintiffs were deprived of their property without due
process of law.” (Doc. 31 at 18.) The Takings Clause of
the Fifth Amendment provides, “[N]or shall private
property be taken for public use, without just compensation,
” U.S. Const. amend. V, and is made applicable to the
States through the Fourteenth Amendment. Murr v.
Wisconsin, 137 S.Ct. 1933, 1942 (2017) (internal
citations omitted). Defendants have moved to dismiss Count II
because it “is unsustainable as a matter of law.”
(Doc. 51 at 16.) “[T]he Takings Clause does not apply
when property is retained or damaged as the result of the
government's exercise of its authority pursuant to some
power other than the power of eminent domain.”
AmeriSource Corp. v. United States, 525 F.3d 1149,
1154 (Fed. Cir. 2008); see also Young v. Cty. of
Hawaii, 578 Fed.Appx. 728, 729 (9th Cir. 2014) (finding
no violation of Takings Clause because plaintiff's
property was seized pursuant to valid search warrant).
Defendants' motion to dismiss Count II is granted.
Count III of the Amended Complaint, Plaintiffs allege that
none of the individual Defendants took affirmative steps to
intervene to protect Plaintiffs' constitutional rights.
Because Plaintiffs have failed to allege that (1) each
individual Defendant was aware that the other individual
Defendants were violating Plaintiffs' constitutional
rights, and (2) that each individual Defendant had a
reasonable opportunity to prevent the harm, Plaintiffs fail
to state a claim for failure to intervene. Davis v.
Schiro, No. CV-07-2167-PHX-SMM, 2008 WL 490622, at *3
(D. Ariz. Feb. 20, 2008) (internal citation omitted).
IV of Plaintiffs' Amended Complaint alleges that
Defendants Casa Grande and Pinal County are liable for the
actions of its employees because each had policies,
procedures, customs, and practices by which neither entity
would (1) investigate alleged civil rights violations, and
(2) discipline officers for such incidents. (Doc. 31 at 20.)
Further, Plaintiffs allege as follows:
The acts or omissions of Defendants, and each of them, as
alleged herein regarding the use of excessive force were
either: (1) caused by inadequate and arbitrary training,
supervision, or discipline of officers by the City of Casa
Grande and County of Pinal; (2) caused by deliberate
indifference of the City of Casa Grande and County of Pinal;
(3) consistent with, and done pursuant to, a custom or de
facto policy of the City of Casa [sic] and ...