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Briggs v. Montgomery

United States District Court, D. Arizona

June 18, 2019

Deshawn Briggs, et al., Plaintiffs,
v.
William Montgomery, et al., Defendants.

          ORDER

          ERIC J. MARKOVICH UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are Defendants Maricopa County and Maricopa County Attorney William Montgomery's Motion to Dismiss (Doc. 34) and Defendant Treatment Assessment Screening Center, Inc.'s Motion to Dismiss (Doc. 36). All appropriate responses and replies have been filed, and the Court heard oral arguments from the parties on May 22, 2019. For the reasons explained below, the Court will deny the motions.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs filed their first amended class action complaint (“FAC”) on October 12, 2018. (Doc. 20). Plaintiffs allege civil rights claims pursuant to 28 U.S.C. § 1983 and the Fourth and Fourteenth Amendments of the United States Constitution and seek monetary damages and injunctive relief. Plaintiffs are four named individuals who represent themselves and a class of similarly situated people. Id. at 6-7. Plaintiffs' allegations concern a marijuana deferred prosecution program (“MDPP” or “the program”) operated by the Maricopa County Attorney's Office (“MCAO”) and Treatment Assessment Screening Center (“TASC”). Id. ¶ 47. Plaintiffs also allege Defendant Bill Montgomery, the elected County Attorney (“CA”) for Maricopa County, is liable in his official capacity for his role in operating and administering the diversion program, and that Montgomery is the final policymaker for Maricopa County on matters relating to diversion programs. Id. ¶ 45.

         Plaintiffs allege that Defendants “jointly operate a possession of marijuana diversion program that penalizes the poor because of their poverty.” Id. ¶ 1. Specifically, Plaintiffs' complaint alleges that:

7. The length of time a person spends in the diversion program and whether the person ultimately completes the program and avoids felony criminal prosecution depends on whether she can pay the program's required fees.
8. In order to complete the program and avoid felony criminal prosecution, participants in the marijuana diversion program must pay a fee of $950 or $1000.
9. Participants must also pay $15 or $17 for each drug and alcohol test; they may be required to take as many as three or four tests each week.
10. The program is two-tiered: people who meet program requirements-completing a three-hour drug education seminar and routine drug and alcohol testing-and are wealthy enough to pay the $950 or $1000 program fee complete the program in 90 days and are no longer subject to felony criminal prosecution.
11. But participants who cannot pay the program fees are forced to stay in the program for at least six months and until they can pay off the money owed to MCAO and TASC, even if they have satisfied every program requirement other than payment.
12. During the “pay-only” period, participants remain subject to felony criminal prosecution during the additional time they are forced to remain in the diversion program.
13. These participants also remain subject to all of the diversion program's requirements.
14. These requirements include reporting to a TASC location, as often as four times per week, so that the participant's urine can be collected and tested.
15. Participants who remain on diversion solely because of their inability to pay program fees must also continue to pay $15 or $17 each time they are required to submit to a drug and alcohol test.
16. The perverse result is that poor people are ultimately charged more money-potentially hundreds of dollars more- than similarly situated participants who can afford to pay to finish the program in 90 days.
17. Participants who cannot afford to pay for diversion may also be terminated from the program altogether and referred for felony prosecution.
18. This can happen in at least two ways.
19. First, Defendants require diversion participants to make a minimum monthly payment towards the $950 or $1000 program fees at a rate set by Defendant TASC.
20. A participant who fails to pay the minimum monthly payment set by Defendant TASC can be terminated from the program and prosecuted.
21. Defendants do not inquire into a participant's ability to pay before setting the minimum monthly fee.
22. Defendants' policy does not include any exception for participants who do not pay the minimum monthly amount solely because they cannot afford it.
23. Second, participants are not allowed to take the drug and alcohol tests the program requires if they cannot afford to pay for them.
24. For example, if a participant cannot pay the $15 or $17 fee for a drug and alcohol test, she is not allowed to take the test at all.
25. Therefore, if a participant reports for a drug and alcohol test without the required fee, she will be turned away, and she will receive a violation for missing the test.
26. In other words, an unpaid drug and alcohol test is a failed test.
27. If a participant misses too many drug and alcohol tests- even if she missed them solely because she could not afford to pay for them-she will be failed out of the diversion program and prosecuted for felony possession of marijuana.
28. Defendants enforce these policies even when they know that diversion participants are poor or even homeless, and even when they know that participants are sacrificing basic necessities to pay fees.
. . .
30. Diversion participants who alert TASC employees that they cannot afford the required fees are told that they will be failed from the program if they do not pay and to do whatever it takes to get the money.

Id. at 2-5 (footnote omitted).

         Plaintiffs state five claims for relief: 1) wealth-based discrimination in violation of the Fourteenth Amendment by Plaintiffs Briggs and Pascale and others similarly situated against all Defendants for monetary damages; 2) wealth-based discrimination in violation of the Fourteenth Amendment by Plaintiff Stephens and others similarly situated against all Defendants for injunctive relief, and by Plaintiff Collier on her own behalf against Defendant TASC for injunctive relief; 3) wealth-based discrimination in violation of the Fourteenth Amendment by Plaintiff Collier against all Defendants for damages and against Defendant TASC for injunctive relief; 4) unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments by Plaintiffs Briggs and Pascale and others similarly situated against all Defendants for damages; and 5) unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments by Plaintiff Stephens and others similarly situated against all Defendants for injunctive relief, and by Plaintiff Collier on her own behalf against Defendant TASC for injunctive relief. (Doc. 20 at 47-51).

         On November 20, 2018 Defendant TASC filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 36). TASC alleges that: “(1) TASC cannot be liable for any of the harm Plaintiffs allege; (2) even if TASC could be liable to Plaintiffs, Plaintiffs' substantive claims (alleging violations of the Fourth and Fourteenth Amendments) fail as a matter of law; and (3) even if Plaintiffs had a substantive claim for relief, Plaintiff Briggs' claims are time-barred.” Id. at 1. TASC further states that at a minimum, Plaintiffs should be required to amend their complaint to clarify their claims and eliminate immaterial allegations in compliance with Fed.R.Civ.P. 8. Id.

         Also on November 20, 2018, Defendants Maricopa County and William Montgomery (“the County Defendants”) filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. 34). The County Defendants allege that dismissal is warranted for the following reasons:

(1) Because the County Attorney acts as a State official, not a County official, when he establishes and implements a marijuana deferred prosecution program, Plaintiffs' § 1983 Monell liability claims/requests for relief against the County and County Attorney must be dismissed [Counts 1-5];
(2) 11th Amendment sovereign immunity bars § 1983 damages claims against the County Attorney in his capacity as a State official; further, the County Attorney in his capacity as a State official is not a “person” for purposes of § 1983. Plaintiffs' § 1983 damages claims against him thus must be dismissed [Counts 1, 3 and 4];
(3) Because the County Attorney's policies and practices in establishing and implementing a marijuana deferred prosecution program are prosecutorial functions, absolute prosecutorial immunity bars Plaintiffs' § 1983 damages claims against the County Attorney [Counts 1, 3 and 4], requiring concomitant dismissal of Plaintiffs' redundant § 1983 damages claims asserted against the County;
(4) Plaintiff Briggs' claims [Counts 1 and 4] are statutorily time-barred; and
(5) For the reasons set forth in Part IV of TASC's Motion to Dismiss, Plaintiffs fail to state claims for relief for alleged wealth discrimination under the 14th Amendment's Due Process and Equal Protection Clauses or for alleged unreasonable search and seizure under the 4th Amendment, as a matter of law [Counts 1-5].

Id. at 1.[1] The County Defendants join in parts IV and V of Defendant TASC's motion to dismiss. Id.

         II. STANDARD OF REVIEW

         Pursuant to Fed.R.Civ.P. 12(b)(6), the Court may grant a motion to dismiss when the plaintiff fails to state a claim upon which relief can be granted. A complaint must contain a “short and plain statement of the grounds for the court's jurisdiction, ” a “short and plain statement of the claim showing that the pleader is entitled to relief, ” and “a demand for the relief sought.” Fed.R.Civ.P. 8(a). While Rule 8 does not demand factual allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). “Threadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

         A dismissal for failure to state a claim “is proper only where there is no cognizable legal theory or an absence of sufficient facts alleged to support cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (internal citation omitted); see also Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (Rule 12(b)(6) dismissal motion “can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim.”). However, “the court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

         To survive a motion to dismiss under Rule 12(b)(6), a pleading must allege facts sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A claim must be plausible, allowing the court to draw the reasonable inference that the defendant is liable for the conduct alleged. Ashcroft, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557). “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.” Iqbal, 556 U.S. at 678.

         “In adjudicating a Rule 12(b)(6) motion to dismiss, . . . a court does not resolve factual disputes between the parties on an undeveloped record. Instead, the issue is whether the pleading states a sufficient claim to warrant allowing the [plaintiffs] to attempt to prove their case.” Coleman v. City of Mesa, 230 Ariz. 352, 363 (2012); see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“factual challenges to a plaintiff's complaint have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6)”), overruling on other grounds recognized by Jack Loumena v. Walter P. Hammon, 2015 WL 7180679 (N.D. Cal. Nov. 16, 2015). Thus, Defendants' motions do not require the Court to make factual determinations regarding Plaintiffs' indigency, or whether Plaintiffs have proved that Defendants have a policy or policies that unconstitutionally discriminate against indigents. The Court only considers whether Plaintiffs have sufficiently stated their claims to justify allowing those claims to move forward.

         The Court must view the complaint in the light most favorable to the nonmoving party, with every doubt resolved on his behalf, and with that party's allegations taken as true. See Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). Generally, the court only considers the face of the complaint when deciding a motion under Rule 12(b)(6). See Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Consideration of matters outside the pleading converts the Rule 12(b)(6) motion to a Rule 56 motion for summary judgment, unless one of two exceptions are met:

First, a court may consider material which is properly submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for summary judgment. If the documents are not physically attached to the complaint, they may be considered if the documents' authenticity . . . is not contested and the plaintiff's complaint necessarily relies on them. Second, under Fed.R.Evid. 201, a court may take judicial notice of matters of public record.

Lee, 250 F.3d at 688-89 (internal quotations and citations omitted); see also Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“documents not attached to a complaint may be considered if no party questions their authenticity and the complaint relies on those documents.”). The Court “may take judicial notice of court filings, as they are matters of public record, and ‘[i]t is also well established that a federal district court can take judicial notice of its own records.'” Baca ex rel. Nominal Defendant Insight Enterprises, Inc. v. Crown, 2010 WL 2812712, at *2 (D. Ariz. July 12, 2010) aff'd sub nom. Baca v. Crown, 458 Fed.Appx. 694 (9th Cir. 2011) (citations omitted). “[While a] court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment . . . a court may not take judicial notice of a fact that is subject to reasonable dispute.” Lee, 250 F.3d at 689. Here, the Court previously ruled that it shall take judicial notice of Exhibits B-F attached to the County Defendants' motion to dismiss and that by so doing the Court does not convert the motion to dismiss into a motion for summary judgment.

         III. DISCUSSION

         Plaintiffs seek relief pursuant to 28 U.S.C. § 1983. “Section 1983 provides a cause of action against any person who deprives an individual of federally guaranteed rights ‘under color' of state law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). “Anyone whose conduct is ‘fairly attributable to the state' can be sued as a state actor under § 1983.” Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “To prevail on a claim under § 1983, a plaintiff must show that (1) acts by the defendants, (2) under color of state law, (3) deprived him of federal rights, privileges, or immunities, and (4) caused him damage.” Platt v. Moore, 2018 WL 2058136, at *2 (D. Ariz. Mar. 15, 2018) (citing Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005)), appeal filed April 12, 2019.

         Plaintiffs' claims concern a class of persons that Plaintiffs refer to as “pay-only participants”[2]-persons who cannot afford to pay the MDPP fee within 90 days and are required to stay on the program longer. Plaintiffs challenge three policies that apply to indigent diversion program participants and allegedly caused the constitutional violations at issue in this suit:

1) participants who are unable to pay minimum monthly payments or fees for mandatory urine tests are terminated from the program (the “wealth-based termination policy”); 2) participants who cannot afford to pay the program fees in 90 days are subject to longer terms of intrusive supervision than similarly-situated participants who are able to pay (the “wealth-based extended supervision policy”); and 3) participants who are supervised in the program solely due to their inability to pay program fees are ...

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