Bailey v. Phoenix, City of

Opinion

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

9 Janie Sue Bailey, No. CV-22-01228-PHX-MTL

10 Plaintiff, ORDER

11 v. NOT FOR PUBLICATION

12 City of Phoenix, et al.,

13 Defendants. 14 15 Plaintiff Janie Sue Bailey brings an Amended Complaint for Intentional Infliction 16 of Emotional Distress against the City of Phoenix, and a First Amendment free speech civil 17 rights claim against both the City of Phoenix and Lori Bays. (Doc. 5.) The Defendants have 18 filed a Motion to Dismiss. (Doc. 8.) 19 I. 20 A complaint must assert sufficient factual allegations that, when taken as true, “state 21 a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 22 At the pleading stage, the Court’s duty is to accept all well-pleaded complaint allegations 23 as true. Id. “[D]ismissal is proper if there is a lack of a cognizable legal theory or the 24 absence of sufficient facts alleged under a cognizable legal theory.” Conservation Force v. 25 Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). 26 II. 27 Intentional Infliction of Emotional Distress (“IIED”) is an Arizona common-law 28 tort. A plaintiff must plead that “the conduct by the defendant was extreme and 1 outrageous.” Citizen Publ’g Co. v. Miller, 210 Ariz. 513, 516 (2005). “The trial court must 2 determine whether the acts complained of are sufficiently extreme and outrageous to state 3 a claim for relief.” Mintz v. Bell Atl. Sys. Leasing Int’l, Inc., 183 Ariz. 550, 554 (Ct. App. 4 1995). “A plaintiff must show that the defendant’s acts were ‘so outrageous in character 5 and so extreme in degree, as to go beyond all possible bounds of decency, and to be 6 regarded as atrocious and utterly intolerable in a civilized community.’” Id. (cleaned up). 7 “[I]t is extremely rare to find conduct in the employment context that will rise to the level 8 of outrageousness necessary to provide a basis for recovery for the tort of intentional 9 infliction of emotional distress.” Id. (cleaned up). The Amended Complaint does not allege 10 any conduct by City of Phoenix personnel that rises to the level of extreme and outrageous 11 behavior, as that concept is defined by Arizona law. 12 Next, Defendants’ argument that the Amended Complaint fails to state a claim for 13 First Amendment retaliation is well taken. The parties agree that Pickering v. Board of 14 Education, 391 U.S. 563 (1968), and its progeny apply to Ms. Bailey’s retaliation claim. 15 To survive a motion to dismiss, a complaint must allege a prima facie case that includes 16 well-pleaded facts that [i] the plaintiff spoke on a matter of public concern, [ii] that the 17 speech was made by the plaintiff in her capacity as a citizen, as opposed to a government 18 employee, and [iii] that the speech was a substantial or motivating factor in the adverse 19 employment action. See Connick v. Myers, 461 U.S. 138 (1983); Eng. v. Cooley, 552 F.3d 20 1062 (9th Cir. 2009). The Amended Complaint falls far short of alleging well-pleaded facts 21 that, if taken as true, state a plausible claim satisfying this inquiry. For example, the 22 Amended Complaint, while offering a lengthy timeline of events, does not clearly articulate 23 how Ms. Bailey’s speech implicated a matter of public concern as opposed to her own 24 personal circumstances. And it does not clearly demonstrate how Ms. Bailey’s speech was 25 made in a private context. 26 Finally, the Amended Complaint fails to state a Monell claim against the City of 27 Phoenix for violating Ms. Bailey’s free speech rights. Under Monell v. Department of 28 Social Services, 436 U.S. 658 (1978), a plaintiff asserting a § 1983 claim against a 1 |} municipality can only recover if she shows that personnel acted pursuant to a policy or 2|| custom established by the entity’s official policymakers. Jd. at 694. As previously || discussed, the Amended Complaint fails to articulate a plausible constitutional violation. 4|| Additionally, the Amended Complaint does not plausibly allege that the City of Phoenix 5 || has an official policy or custom enacted by policymakers that caused Ms. Bailey’s alleged 6 || adverse employment action. 7 III. 8 Ms. Bailey’s response brief requests leave to amend. (Doc. 9 at 17.) Leave to amend 9|| should be freely given and the Court will permit her to file a Second Amended Complaint || asserting her First Amended retaliation claim. The Court has sincere reservations that she 11 || can allege well-pleaded facts to support her TED and Monell claims against the City of 12 || Phoenix. Despite these reservations, the Court will allow Ms. Bailey another attempt to re- 13 || assert claims for IED and Monell liability. Given that Ms. Bailey will be provided leave to file a Second Amended Complaint, Defendant Bays may reserve her qualified immunity 15 || defense. 16 IV. 17 Accordingly, 18 IT IS ORDERED: 19 1. The Motion to Dismiss (Doc. 8) is granted without prejudice. Should || Plaintiff decide to file a Second Amended Complaint, she must do so no later than 7 days from the date of this Order. 22 2. The request for oral argument is denied as oral argument would not have 23 || significantly aided in the Court’s determination of the issues. 24 Dated this 19th day of September, 2022. 25 °° Micha T. Shure 27 Michael T. Liburdi 28 United States District Judge

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