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Leibel v. City of Buckeye

United States District Court, D. Arizona

January 30, 2019

Kevin Leibel, et al., Plaintiffs,
City of Buckeye, et al., Defendants.


          Dominic W. Lanza United Slates District Judge

         Pending before the Court is Defendants' motion to dismiss under Rule 12(b)(6). (Doc. 16.) As explained below, the motion will be granted in part and denied in part.[1]


         A. The Incident

         The complaint was filed on June 6, 2018 (Doc. 1) and re-filed on June 7, 2018 at the direction of the Court (Doc. 7).[2] The following summary assumes the truth of all allegations contained therein.

         On July 19, 2017, C.L.-a 14-year-old boy with autism spectrum disorder-was playing at a public park in Buckeye, Arizona. (Doc. 7 ¶¶ 1, 13, 16, 17.) C.L. was “stimming” with a piece of string. (Id. ¶ 21.) “Stimming, ” or “self-stimulatory behavior, ” is the repetition of physical movements and sounds or the repetitive movement of objects. (Id. ¶ 22). Stimming is common in individuals with developmental disabilities, as it provides a sense of calm and helps them cope with their surroundings. (Id. ¶¶ 22, 23.) It is a well-known and common symptom of autism. (Id. ¶ 24.)

         Defendant David Grossman (“Officer Grossman”)-a police officer and drug recognition expert employed by the Buckeye Police Department-approached C.L. after seeing C.L. stimming. (Id. ¶¶ 9, 20, 25, 27, 29.) Officer Grossman claims that he mistook C.L.'s stimming for illegal drug use. (Id. ¶ 25.) Officer Grossman asked C.L. what he was doing. (Id. ¶ 33.) C.L. responded, “Me? Good.” (Id. ¶ 34.) Grossman again asked C.L. what he was doing. (Id. ¶ 35.) C.L. answered, “I'm stimming.” (Id. ¶ 36.) Officer Grossman responded, “What?” (Id. ¶ 37.) C.L. then stated, “I stim with this, ” as he held up a piece of string for Officer Grossman to see. (Id. ¶ 38.) Officer Grossman responded, “What is that?” and commanded C.L. to “stop walking away from me.” (Id. ¶ 39.)

         C.L. stopped walking and answered, “It's a string, ” and again held the string up for Officer Grossman to see. (Id. ¶ 40.) Officer Grossman then responded, “Ok. So why are you bouncing around that way, ” and asked C.L. if “he had any ID on him.” (Id. ¶ 41.) C.L. answered, “No” and turned to leave. (Id. ¶ 49.) Officer Grossman immediately grabbed C.L.'s right wrist and began bending C.L.'s right arm behind C.L.'s back, telling him: “Don't go anywhere.” (Id. ¶ 50.) Officer Grossman then grabbed both of C.L.'s arms, forced them behind C.L.'s back, and began to handcuff him. (Id. ¶ 51.) C.L. began screaming and tried to move away from Officer Grossman. (Id. ¶ 52.)

         C.L.'s reaction was predictable, given that people with autism often have hypersensitivity to sounds or touch, a condition known as tactory or sensory defensiveness. (Id. ¶ 53.) Even a slight touch can cause those with autism to suffer great anxiety, discomfort, and even physical pain. (Id.)

         Officer Grossman then slammed C.L. against a tree, wrestled him to the ground, and pinned C.L. with his full body weight. (Id. ¶ 56.) C.L. continued to scream, repeatedly saying to himself, “I'm ok, I'm ok.” (Id. ¶ 57.) C.L. then told Officer Grossman, “I need help, ” and “I can't breathe.” (Id. ¶ 58.) Officer Grossman asked, “Why are you acting like this, C.L.?” (Id. ¶ 59.)

         At this point, C.L.'s caregiver, Ms. Craglow, arrived at the park after running errands and informed Officer Grossman that C.L. is autistic. (Id. ¶ 60.) Initially, Officer Grossman ignored the statement and told Ms. Craglow that C.L. was “doing something with his hands.” (Id. ¶ 61.) Ms. Craglow explained, “He's stimming, ” to which Officer Grossman responded “Yeah. I don't know what that is.” (Id. ¶¶ 61, 62.) Ms. Craglow further explained, “It's when you have autism. It's his nerves.” (Id. ¶ 63.) Officer Grossman uttered, “Uh huh, okay, ” and, despite the explanation, continued to pin C.L. to the ground with his full body weight. (Id. ¶ 64.) Ms. Craglow then informed Officer Grossman that C.L.'s hand was “turning white.” (Id. ¶ 67.) Officer Grossman continued to hold down C.L. forcefully. (Id. ¶ 68.)

         When another officer arrived on the scene, Officer Grossman allowed C.L. to get off the ground and sit with Ms. Craglow. (Id. ¶¶ 70, 71.) Officer Grossman told the other officer that he had detained C.L. because C.L. “started backing away from me while I was identifying him and trying to figure out what was in his hand.” (Id. ¶ 71.)

         C.L. suffered significant injuries resulting from his encounter with Officer Grossman. (Id. ¶ 73.) He suffered scratches, cuts, and bruises to his face, back, and arms and a serious ankle injury that has required numerous draining procedures with a heavy gauge needle as well as a surgical intervention. (Id. ¶¶ 74, 75.) C.L. also suffered emotional damage. (Id. ¶¶ 77-80.)

         B. Post-Incident Conduct

         Following the incident, C.L.'s parents filed a complaint against Officer Grossman with the Buckeye Police Department (“BPD”). (Id. ¶ 83.) In response, the BPD admitted that Officer Grossman “has not been trained in handling special needs people or mentally ill persons.” (Id. ¶ 84.) Nevertheless, the BPD concluded that Officer Grossman “acted within the law and did not abuse his power as a sworn officer and was not negligent as an officer during this incident.” (Id. ¶ 85.)

         In a press conference following the incident, the BPD justified Officer Grossman's actions as those of “an officer who encountered a subject who was displaying behavior that he believed may have been of a subject who was under the influence of an inhalant.” (Id. ¶ 86.) In that same press conference, the BPD stated that Officer Grossman's actions were justified because Officer Grossman “had reasonable suspicion” to “detain the juvenile” and “the juvenile began to walk away.” (Id.) The BPD made those statements despite knowing that C.L. had twice showed Officer Grossman the piece of string in his hand and had informed Officer Grossman that he was “stimming.” (Id.)

         The BPD didn't discipline Officer Grossman despite his track record of past misconduct. (Id. ¶¶ 87-89.) Officer Grossman had been disciplined at least four times in the seven years preceding the incident, including for illegally arresting a suspect, filing false reports, failing to act, and abandoning his duty as a police officer. (Id. ¶¶ 89-94.) In addition to those events, the BPD also knew that Officer Grossman had in the past (1) deployed excessive force without legal justification, (2) seized “brass knuckles” despite them not being illegal, (3) written defective police reports, and (4) engaged in reckless driving. (Id. ¶¶ 95-99.)

         Officer Grossman's supervisors-Lieutenant Charles Arlak (“Lieutenant Arlak”) and Chief of Police Larry Hall (“Chief Hall”)-have enabled Officer Grossman's illegal behavior by actively protecting him and minimizing and covering up his illegal behavior. (Id. ¶ 101.) Lieutenant Arlak is Officer Grossman's brother-in-law and is a close friend of Chief Hall. (Id. ¶ 102.) Certain BPD officers have overheard Lieutenant Arlak saying that he needs to “protect” Officer Grossman because of repeated illegal conduct. (Id. ¶ 104.) Lieutenant Arlak has also ordered other members of the BPD to “quit targeting” Officer Grossman. (Id. ¶ 105.) Chief Hall has “targeted” supervisors who have attempted to discipline Officer Grossman for past illegal conduct. (Id. ¶ 109.) Additionally, Chief Hall ordered the BPD to defend Officer Grossman in press conferences, such as the one occurring after the incident with C.L. (Id. ¶ 140.) BPD employees have voiced their concerns to Buckeye City Manager Roger Klingler, but nothing has been done to address the conduct of Officer Grossman, Lieutenant Arlak, or Chief Hall. (Id. ¶¶ 112, 113.)

         C. The Complaint

         The complaint names four defendants: the City of Buckeye (“City”), Officer Grossman, Lieutenant Arlak, and Chief Hall (collectively, “Defendants”). (Doc. 7.)[3] Officer Grossman, Lieutenant Arlak, and Chief Hall are named in their individual and official capacities. The complaint alleges nine causes of action. Causes I through IV arise under 42 U.S.C. § 1983 and/or Monell: (I) false arrest; (II) use of excessive force; (III) failure to train and/or supervise; and (IV) ratification of unconstitutional conduct. Causes V and VI arise under the Americans with Disabilities Act for (V) wrongful arrest and (VI) failure to accommodate. Causes VII through IX arise under state law: (VII) battery; (VIII) negligence; and (IX) negligent training and supervision.

         On June 21, 2018, the Court appointed C.L.'s parents, Kevin and Danielle Leibel, as his guardians ad litem. (Doc. 10.)

         On August 9, 2018, Defendants moved to dismiss for failure to state a claim under Rule 12(b)(6). (Doc. 16.)


         A. Legal Standard

         “[T]o survive a motion to dismiss, a party must allege ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” In re Fitness Holdings Int'l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “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. (quoting Iqbal, 556 U.S. at 678). “[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Id. at 1144-45 (citation omitted). However, the court need not accept legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 679-80. The court also may dismiss due to “a lack of a cognizable legal theory.” Mollett v. Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted).

         B. Analysis

         Defendants argue that each Defendant named in his individual capacity is entitled to qualified immunity for claims arising under § 1983. Specifically, Defendants argue Officer Grossman is entitled to qualified immunity on Cause I (False Arrest) and Cause II (Use of Excessive Force) and Lieutenant Arlak and Chief Hall are entitled to qualified immunity on Cause III (Failure to Train and/or Supervise) and Cause IV (Ratification of Unconstitutional Conduct).

         Qualified immunity is “‘an immunity from suit rather than a mere defense to liability.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation omitted). It should, thus, be resolved “at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the ...

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