United States District Court, D. Arizona
J. MARKOVICH UNITED STATES MAGISTRATE JUDGE
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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
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
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
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).
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
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.
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
(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. The County Defendants join in parts IV and
V of Defendant TASC's motion to dismiss. Id.
STANDARD OF REVIEW
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
accusation.” Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). “Threadbare recitals of a cause of
action, supported by mere conclusory statements, do not
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).
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
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.
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
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.
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.
claims concern a class of persons that Plaintiffs refer to as
“pay-only participants”-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
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 ...