Angela Branum v. City of Phoenix, et al.

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Angela Branum, No. CV-21-00357-TUC-RM

10 Plaintiff, ORDER

11 v.

12 City of Phoenix, et al.,

13 Defendants. 14 15 In the operative Third Amended Complaint in the above-captioned matter, Plaintiffs 16 assert claims against numerous Defendants under 42 U.S.C. § 1983 and state law arising 17 from the death of Justin Branum. (Doc. 17.) Pending before the Court is Defendant State 18 of Arizona’s Motion for Judgment on the Pleadings (Doc. 142), and Plaintiff’s Motion to 19 Extend Time to Respond (Doc. 160). For the following reasons, the Court will grant both 20 Motions. The Court also addresses herein service issues relating to Defendants Ramirez, 21 Kalkbrenner, Williams, and Selbert (Silbert), as well as a Stipulation to Dismiss with 22 Prejudice (Doc. 168) filed by Defendant Corizon Health. 23 I. Motion for Judgment on the Pleadings 24 In its Motion for Judgment on the Pleadings, the State of Arizona argues that all 25 claims against it must be dismissed because it has been sued only under 42 U.S.C. § 1983, 26 and the State is not a “person” amenable to suit under that statute. (See Doc. 142.) Plaintiff 27 does not contest the validity of this argument, but rather asserts in response that the State 28 of Arizona’s Motion is untimely, and that even if the Motion is timely, the State waived its 1 sovereign immunity by removing this case from Arizona state court. (See Doc. 147.) 2 A motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 3 12(c) may be made “[a]fter the pleadings are closed—but early enough not to delay trial[.]” 4 Such a motion is “functionally identical” to a motion to dismiss for failure to state a claim. 5 Gregg v. Hawaii, Dep’t of Pub. Safety, 870 F.3d 883, 887 (9th Cir. 2017). As such, a motion 6 for judgment on the pleadings should be granted if “the moving party clearly establishes 7 on the face of the pleadings that no material issue of fact remains to be resolved and that it 8 is entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & 9 Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). Judgment on the pleadings is also proper 10 when there is either a “lack of a cognizable legal theory” or the “absence of sufficient facts 11 alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 12 699 (9th Cir. 1988). 13 Section 1983 authorizes the assertion of claims only against a “person” who acted 14 under color of state law to deprive another of rights secured by the Constitution. 42 U.S.C. 15 § 1983. “[A] State is not a person within the meaning of § 1983.” Will v. Michigan Dep’t 16 of State Police, 491 U.S. 58, 66 (1989). The Eleventh Amendment bars suits against states 17 in federal court except where Congress has exercised its power to abrogate a state’s 18 sovereign immunity, or where a state has waived its immunity. Id. A state waives its 19 sovereign immunity on federal-law claims by removing an action to federal court. Walden 20 v. Nevada, 945 F.3d 1088, 1092 (9th Cir. 2019). However, the scope of the Eleventh 21 Amendment and the scope of Section 1983 are separate issues. Will, 491 U.S. at 66. 22 Removing a case to federal court—though waiving a state’s sovereign immunity on federal 23 law claims—does not render inapplicable the inherent requirement that a Section 1983 24 defendant be a “person” within the meaning of the statute. S.C. v. Cnty. of Los Angeles, 25 No. CV 21-6163-MWF (PDX), 2023 WL 10407121 (C.D. Cal. Jan. 5, 2023) (waiver of 26 sovereign immunity is a separate issue from whether Section 1983 applies to a named 27 defendant) (collecting cases). 28 Here, the State of Arizona’s Motion for Judgment on the Pleadings is timely under 1 Rule 12(c), and Plaintiff’s attempts to construe the Motion as being brought under Rule 2 12(b)(6) are unfounded. There being no trial set in the above-captioned matter, and with 3 the discovery period not yet closed, it cannot be said that the Motion has delayed trial in 4 this case, and it is properly brought under Rule 12(c). Although it is not clear why the State 5 waited so long to address the issue raised in the Motion, that does not constitute a basis 6 under the Federal Rules for refusing to consider the Motion’s merits. 7 Since the State of Arizona is not a “person” within the meaning of Section 1983, the 8 claims asserted against it in this action must be dismissed. The fact that the State removed 9 this action from state court does not affect this conclusion, because the sovereign immunity 10 of the State and the scope of Section 1983 constitute separate issues. As the State correctly 11 points out, it is not possible to waive the elements of a cause of action, and here, a necessary 12 element is that the defendant be a “person” within the meaning of Section 1983. (Doc. 149 13 at 3.) Accordingly, the State’s Motion for Judgment on the Pleadings will be granted, and 14 the claims against the State will be dismissed. 15 II. Service Issues 16 On September 21, 2023, the Court stayed this matter pending the lifting of the 17 automatic bankruptcy stay issued in Defendant Corizon Health’s bankruptcy proceeding. 18 (Doc. 127.) The Court lifted the stay in this matter on August 12, 2025. (Doc. 137.) On 19 April 18, 2023, prior to the stay of this case, the Court ordered Plaintiff to address service 20 as to Defendants Ramirez, Kalkbrenner, Williams, and Selbert (Silbert).1 (Doc. 117 at 3.) 21 Plaintiff filed the requested Response, and the City of Phoenix filed an Objection, to which 22 Plaintiff filed a Reply. (Doc. 120 at 6, Doc. 121, Doc. 122.) Given the stay of the case that 23 was entered on September 21, 2023, the Court has not yet addressed the parties’ positions 24 regarding the service issues. It is now appropriate to do so. 25 Defendants Ramirez, Kalkbrenner, and Williams are, or were at the time of the 26 1 It appears that Plaintiff erroneously spelled this name “Selbert” in her Third Amended 27 Complaint, and the name is actually “Heston Silbert.” Arizona Daily Independent News Network, Arizona DPS Director Silbert to Retire Effective Friday, 28 https://arizonadailyindependent.com/2023/01/03/arizona-dps-director-silbert-to-retire- effective-friday/ (lasted visited April 2, 2026). 1 relevant events, City of Phoenix employees. (Doc. 17 at 1-2.) The Third Amended 2 Complaint alleges that Defendant Ramirez is a police detective, Defendant Kalkbrenner is 3 chief of the Phoenix Fire Department, and Defendant Williams is chief of the Phoenix 4 Police Department. (Id.) Defendant Selbert (Silbert) was Director of the Arizona 5 Department of Public Safety. (Id.) Plaintiff has sued each of these Defendants only in their 6 official capacities. (Id.) 7 In Plaintiff’s Response, Plaintiff does not contest that service has not been 8 completed on the above Defendants. (See Doc. 120.) Plaintiff asserts that any service 9 objection as to the unserved Defendants has been waived because the Defendants who have 10 appeared have “filed no motion regarding the service” on the unserved Defendants. (Doc. 11 120 at 7.) Plaintiff further asserts in her response that the City of Phoenix’s answer to 12 Plaintiff’s Third Amended Complaint “responded to the allegations against” Defendants 13 Ramirez, Kalkbrenner, and Williams, since they are City of Phoenix employees. (Id.) 14 Finally, Plaintiff asserts that the lack of service on Defendant Selbert (Silbert) should be of 15 no import because “the State has filed no notice or request to replace Mr. Silbert” with the 16 individual who took over Mr. Selbert’s position as Director of the Arizona Department of 17 Public Safety.2 (Id. at 8.) 18 In its Objection to Plaintiff’s Response, the City of Phoenix points out that its 19 counsel never filed a notice of appearance or any other documents on behalf of Defendants 20 Ramirez, Kalkbrenner, and Williams, for the very reason that they had not been served. 21 (Doc. 121 at 3.) The City disputes Plaintiff’s assertion that the City filed an Answer on 22 behalf of Defendants Ramirez, Kalkbrenner, and Williams; the City explains that it merely 23 conceded in its Answer that those Defendants were its employees and denied the remaining 24 paragraphs relating to those Defendants because the City was required to answer the

25 2 Plaintiff states that Mr. Silbert should be replaced by Mr. Ryan Thornell, but it appears that Plaintiff confuses the Directors of the Arizona Department of Public Safety and the 26 Arizona Department of Corrections, respectively. Mr. Silbert, former Director of the Department of Public Safety, was replaced by Mr. Jeffrey Glover. DEPARTMENT OF PUBLIC 27 SAFETY, https://www.azdps.gov/colonel (last visited April 2, 2026). Mr. Thornell, current Director of the Department of Corrections, replaced Mr. David Shinn, former Director of 28 the Department of Corrections. DEPARTMENT OF CORRECTIONS, REHABILITATION, & REENTRY, https://corrections.az.gov/office-director. 1 allegations of the Third Amended Complaint. (Id.) Finally, the City explains that the 2 deadline to complete service prescribed by Rule 4(m) may only be extended for good cause, 3 and the City argues that no good cause exists here. (Id.) 4 Plaintiff’s attempts to contort the rules regarding service of process to excuse a 5 yearslong failure to complete service are without merit. Contrary to Plaintiff’s assertions, 6 the Defendants who have been served are under no obligation to contest service of process 7 as to any other Defendant. A party asserts defenses that are applicable to the claims against 8 it, and does not litigate a case on behalf of every other defendant. See Fed. R. Civ. P. 12. 9 Objections to service of process are waived only if a defendant appears in an action and 10 fails to raise the objection in the defendant’s answer or other initial response to the 11 complaint. Fed. R. Civ. P. 12(h). Since Defendants Ramirez, Kalkbrenner, Williams, and 12 Selbert (Silbert) have not appeared, it follows that they cannot have waived objections 13 regarding service of process. 14 Plaintiff’s argument that the City of Phoenix appeared on behalf of Defendants 15 Ramirez, Kalkbrenner, and Williams by answering allegations regarding these Defendants 16 made in the Third Amended Complaint is similarly unavailing. “A government employer’s 17 entry of appearance is not deemed an entry of appearance by its employees sued in their 18 official capacities.” Cheeks v. Belmar, 331 F.R.D. 499, 505 (E.D. Mo. 2019) (citing 19 Gillpatrick v. Frakes, No. 4:18CV3011, 2018 WL 1955120, at *3 (D. Neb. Feb. 26, 2018)). 20 Here, as the City points out, its counsel “never filed a notice of appearance or any other 21 documents on behalf of Defendants Ramirez, Kalkbrenner, and Williams in this action.” 22 (Doc. 121 at 3.) Moreover, the City’s answer to Plaintiff’s Third Amended Complaint 23 cannot be construed as answering the Complaint on behalf of Defendants Ramirez, 24 Kalkbrenner, and Williams merely because it acknowledged that those Defendants were 25 City employees; the City was simply responding to the allegations in the Complaint, as 26 required. The City’s answer also repeatedly refers to “this answering Defendant” in the 27 singular. (See Doc. 26.) 28 Finally, Plaintiff’s argument that her obligation to complete service on the Director 1 of the Arizona Department of Public Safety was relieved because Mr. Selbert (Silbert)— 2 the office holder at the time Plaintiff filed her Third Amended Complaint—was replaced 3 by Mr. Glover is also unavailing. Rule 25(d) provides that when a public officer who is a 4 party in an official capacity . . . resigns or otherwise ceases to hold office while the action 5 is pending[,] [t]he officer’s successor is automatically substituted as a party.” (emphasis 6 added). “[A]ny misnomer not affecting the parties’ substantial rights must be 7 disregarded. The court may order substitution at any time, but the absence of such an order 8 does not affect the substitution.” Fed. R. Civ. P. 25(d). While this rule provides for 9 automatic substitution, it does not excuse a failure to complete service of process. Here, 10 neither Mr. Selbert (Silbert) nor any of his successors has been served in accordance with 11 the rules governing personal service. 12 Moreover, in her arguments regarding service on Mr. Selbert (Silbert) or his 13 successor, Plaintiff wrongfully conflates service upon the State of Arizona as being 14 equivalent to service upon the State’s public officials in their official capacity. It appears 15 to be the majority view among courts to address the issue that a state officer sued in his 16 official capacity must be served in accordance with the rules governing service upon 17 individuals. See Alexander v. Brown, No. 8:23-cv-00274-JFW-SHK, 2024 WL 1218280 18 (C.D. Cal. Feb. 9, 2024), report and recommendation adopted, No. 19 823CV00274JFWSHK, 2024 WL 1216716 at *9 (C.D. Cal. Mar. 20, 2024); Echevarria- 20 Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 29-30 (1st Cir. 1988). “‘[W]here a state officer 21 is sued in his official capacity, the state has a major interest in the outcome,’ but the officer 22 remains the actual and separate party to the action.” Cheeks, 331 F.R.D. at 505. 23 Even assuming that service pursuant to Rule 4(j) is proper—service upon “a state . 24 . . or any other state-created governmental organization”—there is no evidence that the 25 Arizona Department of Public Safety ever received service of process. Rule 4(j) allows a 26 state-created governmental organization to be served either by “delivering a copy of the 27 summons and of the complaint to its chief executive officer” or by following the Arizona 28 rules, which state that a governmental entity may be served by “delivering a copy of the 1 summons and the pleading” to the “entity’s chief executive officer(s), or, alternatively, its 2 official secretary, clerk, or recording officer.” Ariz. R. Civ. P. 4.1(h). There is a clear 3 rationale for requiring service upon a defendant official or his organization, and not just 4 the state for which he works, when he is sued in an official capacity, namely, that “the 5 action is directly against him, that some action or inaction is requested from him, and that 6 he might be held in contempt if he were to violate the court’s orders.” Echevarria- 7 Gonzalez, 849 F.2d at 29. 8 If good cause exists for a failure to timely complete service, the court must extend 9 the time period for service. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). Even if the 10 plaintiff fails to show good cause, the district court has “the discretion to dismiss without 11 prejudice or extend the time period.” Id. (citing Petrucelli v. Bohringer & Ratzinger, 12 GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995)). Factors to be considered in examining whether 13 good cause exists include whether: “(a) the party to be served received actual notice of the 14 lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely 15 prejudiced if his complaint were dismissed.” Id. (citing Boudette v. Barnette, 923 F.2d 754, 16 756 (9th Cir. 1991). 17 Here, no good cause exists for Plaintiff’s failure to complete service upon 18 Defendants Ramirez, Kalkbrenner, Williams, or Selbert. There is no evidence that these 19 defendants received actual notice of this suit, and they would be prejudiced by being 20 brought into this lawsuit after years of delay in service. Furthermore, Plaintiff will suffer 21 no prejudice from the dismissal of Defendants Kalkbrenner and Williams, as they are 22 redundant defendants: the City of Phoenix is a named Defendant, and Kalkbrenner and 23 Williams are municipal officers of the City of Phoenix named only in their official 24 capacities. See Center for BioEthical Reform, Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 533 25 F.3d 780, 799 (9th Cir. 2008) (“When both a municipal officer and a local government 26 entity are named, and the officer is named only in an official capacity, the court may 27 dismiss the officer as a redundant defendant.”). Although Plaintiff named Defendant 28 Ramirez in both his individual and official capacities, and he is therefore not a redundant 1 defendant, the Court will nonetheless dismiss Ramirez from this action because any 2 prejudice to Plaintiff is outweighed by the prejudice Ramirez would suffer by being 3 brought into this suit years after its initiation coupled with the fact that there is no indication 4 Ramirez ever received actual notice of this suit. Finally, Plaintiff will not suffer any 5 prejudice if Defendant Selbert (Silbert) is dismissed from this action, because he is named 6 only in his official capacity and “neither a State nor its ‘officials’ acting in their official 7 capacities are ‘persons’ under § 1983” when sued for damages. Will, 491 U.S. at 71.3 Since 8 Plaintiff cannot recover from Defendant Selbert (Silbert) under § 1983 given that she has 9 sued him only in his official capacity, she will suffer no prejudice from his dismissal, and 10 he will therefore be dismissed from this action. 11 Although the Court did not order Plaintiff to address service as to Defendant David 12 Shinn in its April 23, 2023 Order given that, at that time, the action was to be stayed as to 13 Defendants Shinn and Corizon, it appears that the same service issues applicable to 14 Defendant Selbert (Silbert) are also applicable to Defendant Shinn. Defendant Shinn has 15 not appeared in this action, and it does not appear that service has been executed upon him. 16 Furthermore, Defendant Shinn is also sued only in his official capacity, rendering Plaintiff 17 unable to recover damages from him under § 1983. The Court will therefore require 18 Plaintiff to file a response to this Order within thirty days of the date it is filed addressing 19 service as to Defendant Shinn and addressing why he should not be dismissed from this 20 action. 21 III. Motion to Extend Time to Respond 22 In the Motion to Extend Time, Plaintiff asks the Court to extend her deadline to file 23 a response to Defendant Maricopa County’s Motion to Exclude Plaintiff’s Expert Opinions 24 from March 20, 2026, to March 27, 2026. (Doc. 160.) Plaintiff avers that good cause exists 25 for the requested extension of time because Plaintiff’s counsel is suffering a serious illness

26 3 The Court notes that a state official sued in his or her official capacity for injunctive relief is a “person” under § 1983 because “official-capacity actions for prospective relief are not 27 treated as actions against the State.” Will, 491 U.S. at 71 n.10 (citing Kentucky v. Graham, 473 U.S., at 167, n. 14; Ex parte Young, 209 U.S. 123, 159–160 (1908). Here, however, 28 Plaintiff seeks only damages, not injunctive relief, and indeed could not seek injunctive relief because Plaintiff alleges no future injury. 1 requiring outpatient treatment and surgery, and Plaintiff’s counsel has a close family 2 member in critical condition in the State of Washington, leading counsel to travel there to 3 be with family. (Id.) Plaintiff’s counsel explains that Defendants opposed the requested 4 extension of time before Plaintiff’s counsel received word of the condition of her family 5 member, and that she intended to comply with the initial deadline to respond before being 6 faced with her current family emergency. (Id.) On March 27, 2026, Plaintiff filed her 7 response to the Motion to Exclude Plaintiff’s Expert Opinions. (Doc. 163.) Good cause 8 appearing, the Court will grant the Motion to Extend Time and accept Plaintiff’s response 9 as timely filed. 10 IV. Notice of Settlement, Notice of Clarification Regarding Notice of 11 Settlement, and Stipulation of Dismissal 12 On December 31, 2025, Defendant State of Arizona filed a Notice of Settlement in 13 which it alerted the Court that “the parties have reached a settlement in principle.” (Doc. 14 151.) On February 9, 2026, Plaintiff filed a Notice of Clarification Regarding the State of 15 Arizona’s December 31, 2025 Notice of Settlement. (Doc. 155.) The Notice of 16 Clarification states that “[o]n December 16, 2025, Plaintiff participated in a mediation 17 regarding Defendant Corizon Health and the State of Arizona Department of Corrections,” 18 during which Plaintiffs agreed in principle to resolve claims against Corizon and the 19 Arizona Department of Corrections. (Id.) Plaintiff states that the Arizona Department of 20 Public Safety and its agents did not participate in the negotiation. (Id.) 21 On April 10, 2026, Corizon Health filed a Stipulation to Dismiss with Prejudice, in 22 which Corizon states that “Plaintiff and Defendants Corizon Correctional Healthcare and 23 the State of Arizona hereby stipulate and agree that this matter may be dismissed with 24 prejudice only as related to Plaintiffs’ claims regarding Justin Branum’s medical care while 25 incarcerated with the Arizona Department of Corrections.” (Doc. 168 at 2.) The Court will 26 deny the Stipulation with leave to refile, as it is not sufficiently clear which particular 27 claims in the Third Amended Complaint are being dismissed as to which Defendants. The 28 Court notes that the State of Arizona Department of Corrections is not a named defendant 1 in this action. Plaintiff named former Director of the Arizona Department of Corrections, 2 David Shinn, in his official capacity (Doc. 17), but as discussed above, it does not appear 3 that service has been executed upon Defendant Shinn. No attorney has appeared on Shinn’s 4 behalf in this action, and it is not clear whether the Stipulation to Dismiss intends to dismiss 5 any of Plaintiff’s claims against Defendant Shinn. Furthermore, it is not clear whether the 6 Stipulation to Dismiss intends to dismiss Defendant Corizon Health (or any other 7 Defendant) from this action entirely, or whether it intends only to dismiss certain claims 8 against Corizon Health. 9 As discussed above, the State of Arizona is not amenable to suit under § 1983, and 10 the State will therefore be dismissed from this action. With respect to Defendant Corizon 11 Health, and any other Defendant with which Plaintiff has reached a settlement in principle, 12 the Court will require a new Stipulation of Dismissal or a status report to be filed within 13 thirty (30) days of the date this Order is filed. Any refiled Stipulation of Dismissal must 14 state exactly which claims in the Third Amended Complaint against which Defendant are 15 being dismissed, and whether the Defendant at issue is being dismissed from this action 16 entirely. 17 IT IS ORDERED that Defendant State of Arizona’s Motion for Judgment on the 18 Pleadings (Doc. 142) is granted. 19 IT IS FURTHER ORDERED that Plaintiff’s Motion to Extend Time to Respond 20 (Doc. 160) is granted, nunc pro tunc. 21 IT IS FURTHER ORDERED that Defendants Ramirez, Kalkbrenner, Williams, 22 and Selbert are dismissed without prejudice from this action for failure to serve. 23 IT IS FURTHER ORDERED that Plaintiff shall file a response addressing service 24 upon Defendant David Shinn within thirty (30) days of the date this Order is filed. 25 IT IS FURTHER ORDERED that the Stipulation to Dismiss with Prejudice (Doc. 26 168) is denied without prejudice, with leave to refile. 27 . . . . 28 . . . . l IT IS FURTHER ORDERED that Plaintiff and Defendant Corizon Health, and || any other Defendant with which Plaintiff has reached a settlement in principle, shall file || either a Stipulation of Dismissal or a status report within thirty (30) days of the date this Order is filed. 5 Dated this 21st day of April, 2026. 6 4

Honorable Rostehary Mafquez 10 United States District □□□□□ 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-ll-