United States District Court, D. Arizona
Dominic W. Lanza United Slates District Judge
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.
complaint was filed on June 6, 2018 (Doc. 1) and re-filed on
June 7, 2018 at the direction of the Court (Doc.
The following summary assumes the truth of all allegations
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.)
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.)
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.)
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.
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.)
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.)
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.)
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.)
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.)
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.”
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.
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.)
complaint names four defendants: the City of Buckeye
(“City”), Officer Grossman, Lieutenant Arlak, and
Chief Hall (collectively, “Defendants”). (Doc.
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
21, 2018, the Court appointed C.L.'s parents, Kevin and
Danielle Leibel, as his guardians ad litem. (Doc. 10.)
August 9, 2018, Defendants moved to dismiss for failure to
state a claim under Rule 12(b)(6). (Doc. 16.)
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).
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).
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 ...