1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard F. Bellis, et al., No. CV-23-08125-PCT-JAT (ASB) 10 Plaintiffs, 11 v. ORDER 12 Navajo County, et al., 13 Defendants.
14 15 Plaintiffs Richard F. Bellis (Bellis) and Diane R. Griswold (Griswold), who are 16 represented by counsel, brought this action pursuant to 42 U.S.C. § 1983 and Arizona state 17 law. Pending before the Court are: (1) Defendants Holbrook and Smigiel’s Motion to 18 Dismiss (Doc. 24) and (2) Defendant Naranjo’s Motion to Dismiss (Doc. 31).1 19 I. Background 20 In their First Amended Complaint (Doc. 17), Plaintiffs relevantly allege as follows. 21 In or around May 2020, Griswold purchased a .13-acre parcel of land zoned as commercial- 22 residential located in Overgaard, Arizona (the Property). Griswold and Bellis moved onto 23 the Property with eight dogs in an RV and mobile home with the intention to live in the 24 RV until they built a permanent home. In February 2021, Griswold applied for a septic 25 system permit with Navajo County Public Works, as a prerequisite for obtaining a building
26 27 1 Although the Parties request oral argument, that request is denied as oral argument would not have aided the Court’s decisional process. See e.g., Partridge v. Reich, 141 F.3d 28 920, 926 (9th Cir. 1998); Lake at Las Vegas Investors Group, Inc. v. Pacific. Dev. Malibu Corp., 933 F.2d 724, 729 (9th Cir. 1991). 1 permit with the County, but in March 2021, the application was denied. Navajo County 2 Public Works notified Griswold that she needed to retain a licensed engineer to design the 3 septic system to comply with Arizona Department of Environmental Quality regulations. 4 Griswold retained an engineer to design the septic system, but the engineer resigned before 5 finishing an approved septic design. In September 2021, Defendant Navajo County Public 6 Works Director Osgood informed Bellis that if he and Griswold did not “voluntarily move 7 off the property,” the County would “have no choice but to initiate legal action.” 8 In October 2021, the Navajo County Attorney’s Office sent a letter to Griswold 9 citing zoning violations, including “illegal recreation vehicles/travel trailers being located 10 on the property” and “no sewer or wastewater disposal facilities on the property.” The 11 letter instructed Griswold to remove the referenced RV and mobile home from the Property 12 within ten days or the County Attorney would pursue legal action. In January 2022, the 13 Navajo County Board of Supervisors voted to initiate a “Civil enforcement” action against 14 Griswold for violations of Section 2203 of the Navajo County Zoning Ordinance, which 15 states that “RV[s] shall not be placed in the following zones: I-1, I-2, [Commercial 16 Residential], or Multi-Family Residential.” In May 2022, the County Attorney served a 17 Notice of Abatement on Griswold, but no action was ever filed with the court. 18 On July 11, 2022, Defendant Lieutenant Jerry VanWinkle (VanWinkle) of the 19 Navajo County Sheriff’s Office filed an Affidavit for Search Warrant with Navajo County 20 Superior Court, requesting to enter the Property “for the purpose of locating and placing 21 Richard Frank Bellis [ ] and Diane Ruth Griswold [ ] under arrest.” As a basis for having 22 the warrants issued, VanWinkle stated: “Neither Bellis or Griswold are supporters of law 23 enforcement and have posted dissenting comments on social media, ‘Navajo County Public 24 Works at its best forcing people from their property. Watch what armed thugs he sends to 25 tear down and destroy personal property.’” The Affidavit for Search Warrant also 26 referenced that Navajo County deputies went to the Property “for the purpose of serving 27 civil paperwork, ‘Notice to Abate Public Nuisance’ [but that] Richard Bellis and Diane 28 Griswold were both uncooperative” including by Bellis “refus[ing] . . . to provide 1 identification.” It further listed outstanding misdemeanor warrants for Bellis and Griswold, 2 based partially on driving offenses and related fines. The Affidavit for Search Warrant 3 made no reference to any alleged illegal items or activity. In a Supplement to an Incident 4 Report, VanWinkle stated “[w]hen driving by the property of Richard and Diana [sic] I 5 have seen an[] American Flag flying upside down. (This is a sign of anti-government 6 sentiment.). . . . After discovering that Belliss [sic] and Griswold had warrants and with 7 the fact of their display of disrespect and uncooperative action[,] it was decided that Navajo 8 County Sheriff’s Office would obtain a search warrant for the property, residences and 9 vehicles to locate Bellis and Griswold and arrest them on the valid arrest warrants that they 10 had.” 11 Based on VanWinkle’s Affidavit for Search Warrant, Navajo County Superior 12 Court Judge Melinda K. Hardy issued two search warrants to: (1) to search Griswold and 13 the Property, and (2) to search Mr. Bellis and the Property. A third search warrant was 14 issued on July 12, 2022 by Navajo County Superior Court Judge Michala M. Ruechel to 15 search Bellis and Griswold and the Property and to seize any “illegal substances known or 16 suspected to be methamphetamine” and any “illegal paraphernalia” used to ingest or sell 17 methamphetamine. This search warrant relies upon the same observations of Bellis’s and 18 Griswold’s purported criticisms of Navajo County officials as in the July 11, 2022 19 Affidavit for Search Warrant. 20 On July 12, 2022, at approximately 7:00 a.m., multiple officers, including 21 Defendants VanWinkle, Navajo County Sheriff’s Office Sergeants McCracken and 22 Esparza and Show Low Police Officer Naranjo, raided Bellis and Griswold’s RV and 23 mobile home with long rifles and guns drawn, wearing body armor and other tactical gear. 24 Bellis and Griswold were arrested and taken to county jail. Two days later, on July 14, 25 2022, the Court ordered that Bellis be released because no criminal complaint was filed 26 against him, but due to a “mistake” at the jail, Bellis was not released until 1:00 a.m. on 27 July 15, 2022. When Bellis returned to the Property, he found that his and Griswold’s RV 28 and mobile home were gone, along with all of their personal belongings, including birth 1 certificates, ID cards, social security cards, all personal records, and the eight dogs. 2 Defendants Osgood and McCracken were present during the destruction and/or removal of 3 Plaintiffs’ property. 4 Also on July 12 or 13, upon information and belief, Navajo County Animal Control 5 took possession of the eight dogs. Bellis owns the dogs and is the only one with final 6 decision-making authority over the dogs, but unknown officials approached Griswold 7 while she was in jail and demanded that she sign a paper regarding the dogs purporting to 8 relinquish ownership rights, which is authority she did not have. Griswold does not recall 9 affixing her signature to any such paper. No one approached Mr. Bellis with any such 10 paper. 11 On July 18, 2022, Bellis returned to the jail and bailed out Griswold by paying $195 12 in unpaid fines relating to Griswold’s prior misdemeanor driving offenses. On July 20, 13 2022, Bellis and Griswold paid $310 in adoption fees to regain possession of seven of the 14 eight dogs, all of which had been neutered and spayed without permission. 15 Defendant Brandon Smigiel (Smigiel), the animal control officer in Holbrook, 16 refused to turn the dogs back over to Plaintiffs without the payment of adoption fees and 17 refused to provide any information about their eighth dog, which, upon information and 18 belief, had been adopted out while Bellis and Griswold were still in custody. Bellis and 19 Griswold have not regained possession of their eighth dog. 20 Although the County retains control of some of Plaintiffs’ property, it will not 21 provide a comprehensive catalogue or inventory list of what property it holds. Plaintiffs 22 have never received notice of an abatement action being filed in court and no such action 23 has been filed in Navajo County Superior Court or elsewhere. 24 In their Complaint, Plaintiffs allege: (1) a First Amendment retaliation claims in 25 Count One based on Defendant VanWinkle’s statements regarding Plaintiffs’ speech in the 26 search warrant affidavit and the execution of the search warrants by Defendants 27 28 1 McCracken, Esparza, Naranjo; this Count is asserted against Defendants Navajo County,2 2 David Clouse, Jerry VanWinkle, Kyle Esparza, Andrew Naranjo, Chris McCracken, John 3 Osgood, and Janet Osgood (Count One); (2) a claim pursuant to Article 2, section 6 of the 4 Arizona Constitution for violations of freedom of speech against Defendants Navajo 5 County, David Clouse, Jerry VanWinkle, Kyle Esparza, Andrew Naranjo, Chris 6 McCracken, John Osgood, and Janet Osgood based on the affidavit for and execution of 7 the search warrant (Count Two); (3) a Fourth Amendment unconstitutional search claim 8 against Defendants Navajo County, David Clouse, Jerry VanWinkle, Kyle Esparza, 9 Andrew Naranjo, Chris McCracken, John Osgood, and Janet Osgood (Count Three); (4) an 10 unconstitutional search claim pursuant to Article 2, section 8 of the Arizona Constitution 11 against Defendants Navajo County, David Clouse, Jerry VanWinkle, Kyle Esparza, 12 Andrew Naranjo, Chris McCracken, John Osgood, and Janet Osgood (Count Four); (5) a 13 Fifth Amendment takings claim against Defendants Navajo County, David Clouse, Jerry 14 VanWinkle, Kyle Esparza, Andrew Naranjo, Chris McCracken, John Osgood, Janet 15 Osgood, and Smigiel based on the destruction or refusal to return Plaintiffs’ property, and 16 the seizure and “alteration” of their dogs (Count Five); (6) a takings claim pursuant to 17 Article 2, section 17 of the Arizona Constitution against all Defendants (Count Six); (7) a 18 Fourteenth Amendment due process claim against Defendants Navajo County, David 19 Clouse, Jerry VanWinkle, Kyle Esparza, Andrew Naranjo, Chris McCracken, John 20 Osgood, Janet Osgood, and Smigiel (Count Seven); (8) a “false arrest and detention claim”3 21 based on Bellis’s arrest and the failure to immediately release him despite an order to do 22 so against Defendants Navajo County, David Clouse, Jerry VanWinkle, Kyle Esparza, 23 24 2 Plaintiffs assert that the purported Monell claim against the County in this Count 25 derives from the execution of the search warrants, which was “fully sanctioned,” and the wearing of body armor for the execution of nonviolent warrants, which constitutes 26 “intimidation” and additionally chills speech. Plaintiffs allege that the practice of wearing 27 body armor to execute arrests is “widespread.” 28 3 Plaintiffs cite to no legal basis for this claim, such as the Fourth Amendment. In their briefing, the Parties appear to agree this claim is brought pursuant to state law. 1 Andrew Naranjo, Chris McCracken, John Osgood, and Janet Osgood (Count Eight); (9) a 2 conversion claim against all Defendants based on the wrongful taking and conversion of 3 Plaintiffs’ property (Count Nine); (10) a trespass to chattels claim against all Defendants 4 based on the taking and neutering and spaying of Bellis’s dogs (Count Ten); (11) 5 negligence, gross negligence, and intentional infliction of emotional distress against all 6 Defendants based on the violation of Plaintiffs’ “constitutional rights when [Defendants] 7 wrongfully arrested and detained [Plaintiffs], held Mr. Bellis after the Court ordered his 8 release, demolished [Plaintiffs’] homes, stole and destroyed (or refused to return) their 9 personal effects, and took the dogs, all without probable cause, or any hearing or 10 opportunity to be heard” (Count Eleven (negligence), Count Twelve (gross negligence), 11 and Count Thirteen (intentional infliction of emotional distress)). 12 II. Legal Standard 13 Dismissal of a complaint, or any claim within it, for failure to state a claim under 14 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 15 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 16 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 18 whether a complaint states a claim under this standard, the allegations in the complaint are 19 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 20 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 21 pleading must contain “a short and plain statement of the claim showing that the pleader is 22 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 23 statement need only give the defendant fair notice of what . . . the claim is and the grounds 24 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 25 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 26 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 27 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 28 pleads factual content that allows the court to draw the reasonable inference that the 1 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 2 As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the 3 face of the complaint and documents attached thereto. Van Buskirk v. Cable News 4 Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner 5 & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside 6 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 7 judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may, 8 however, consider documents incorporated by reference in the complaint or matters of 9 judicial notice without converting the motion to dismiss into a motion for summary 10 judgment. Id. 11 III. Discussion 12 A. Holbrook and Smigiel 13 1. Monell 14 a. Arguments 15 Defendants Holbrook and Smigiel argue that the Monell claim against the City of 16 Holbrook should be dismissed as there are no factual or non-conclusory allegations that 17 Defendant Smigiel’s actions were a product of a custom, policy or practice of the City of 18 Holbrook. Defendants assert that Plaintiffs allegations only state that Smigiel, in his 19 individual capacity, acted consistently with the Navajo County Animal Surrender Form 20 signed by Griswold. 21 In Response, Plaintiffs assert that they have properly pleaded a Monell claim against 22 the City of Holbrook because they 23 allege widespread constitutional violations—persisting across the Sheriff’s Department, the Superior Court, the Public Works 24 Department, to the City of Holbrook for its role related to the 25 Holbrook Animal Control Shelter (as a Navajo County contracted pound)—including the wrongful arrest and 26 detention of Mr. Bellis and Ms. Griswold, followed by the 27 demolition of Mr. Bellis’ and Ms. Griswold’s homes, the destruction of their property and personal effects, and the 28 taking and altering of their dogs, all without any hearing or 1 opportunity to be heard. 2 (Doc. 27 at 11-12.) 3 b. Legal Standard 4 To prove a claim based on a policy, practice, or custom of the City of Holbrook or 5 Defendant Smigiel in his official capacity,4 Plaintiffs must allege (1) that their 6 constitutional rights were violated by an employee or employees of the City of Holbrook; 7 (2) that the City of Holbrook has customs or policies that amount to deliberate indifference; 8 and (3) that the policies or customs were the moving force behind the violation of 9 Plaintiffs’ constitutional rights in the sense that the City of Holbrook could have prevented 10 the violation with an appropriate policy. See Monell v. Dep’t of Social Servs., 436 U.S. 11 658, 690-94 (1978); Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1194 (9th Cir. 2002). 12 “Policies of omission regarding the supervision of employees . . . can be policies or customs 13 that create . . . liability . . . , but only if the omission reflects a deliberate or conscious choice 14 to countenance the possibility of a constitutional violation.” Gibson, 290 F.3d at 1194 15 (quotations omitted). 16 A “decision not to train certain employees about their legal duty to avoid violating 17 citizens’ rights may rise to the level of an official government policy for purposes of 18 § 1983.” Connick v. Thompson, 563 U.S. 51, 61 (2011). To support a Monell claim for 19 failure to train under § 1983, a plaintiff must allege facts demonstrating that the local 20 government’s failure to train amounts to “deliberate indifference to the rights of persons 21 with whom the [untrained employees] come into contact.” Id. at 61 (citing City of Canton 22 v. Harris, 489 U.S. 378, 388 (1989)). 23 . . . . 24 . . . . 25
26 27 4 Defendants assert that Smigiel is an employee of the State of Arizona, not the City of Holbrook. This assertion is not supported by the allegations of the Complaint and the 28 Court will assume Smigiel is an employee of the City of Holbrook for the purpose of deciding the Motion to Dismiss. 1 c. Analysis 2 The Court could not locate where in the Complaint Plaintiffs allegedly asserted a 3 Monell claim against the City of Holbrook. There is no such claim asserted in any Count 4 of the Complaint and the City of Holbrook is only generally mentioned. To the extent 5 Plaintiffs intended to state such a claim by naming Defendant Smigiel in his individual and 6 official capacities, the factual basis of a Monell claim is unclear from the allegations in the 7 individual Counts of the Complaint. Plaintiffs’ Response to the Motion to Dismiss is 8 wholly unhelpful on this point as it groups actions of other Defendants, who are not alleged 9 to be employees of the City of Holbrook, with actions allegedly taken by Defendant 10 Smigiel. This grouping fails to establish that any of the Defendants were acting pursuant 11 to a policy, custom, or practice of the City of Holbrook that led to a violation of Plaintiffs’ 12 constitutional rights. Accordingly, to the extent the Parties contend that Plaintiffs intended 13 to state a Monell claim in their Complaint, the Court could locate no factually supportive 14 allegations of such a claim in the Complaint, and the Monell claim against the City of 15 Holbrook or against Smigiel in his official capacity will be dismissed without prejudice for 16 failure to state a claim upon which relief may be granted. 17 2. Count Five 18 Defendants assert that Plaintiffs fail to state a Fifth Amendment claim against 19 Defendant Smigiel in Count Five because the Fifth Amendment applies only to the federal 20 government, the federal government is not a defendant, and Smigiel is not a federal agent 21 and did not violate clearly established Fifth Amendment due process law. 22 In Response, Plaintiffs assert that they have sufficiently alleged a Fifth Amendment 23 Takings claim because they alleged the taking of the dogs without compensation, Smigiel 24 refused to return the dogs without an additional payment, refused to return the dogs 25 unaltered, and refused to provide any information facilitating the return of the eighth dog, 26 which has still not been returned and Plaintiffs were not compensated for (1) costs to regain 27 possession of the dogs; (2) the loss of prospective income from Mr. Bellis’ inability to 28 breed his dogs; and (3) the loss of the eighth dog. Plaintiffs assert that because Defendants 1 construed Count Five as a due process claim, they cannot now argue that the Takings claim 2 should be dismissed. 3 In Reply, Defendants assert that Plaintiffs also did not state a Takings claim. The 4 Court will grant the Motion to the extent it seeks to dismiss a due process claim asserted 5 pursuant to the Fifth Amendment. Because Defendants did not seek to dismiss the Takings 6 claim until their Reply and Plaintiffs have not been given an opportunity to respond that 7 argument, the Court will not determine whether Plaintiffs stated a Takings claim in Count 8 Five. 9 3. Count Seven 10 Defendants assert that there is no case clearly establishing that it was a Fourteenth 11 Amendment violation when Defendant Smigiel acted consistently with the Navajo County 12 Animal Surrender form signed by Griswold and required Plaintiffs to readopt the dogs after 13 their surrender, and it is unclear what process would be due under such circumstances. 14 With regard to qualified immunity, Plaintiffs assert Smigiel violated Plaintiffs’ Fifth 15 and Fourteenth Amendment rights by taking, altering, and refusing to return Plaintiffs’ 16 dogs, without payment, and without any hearing or opportunity to be heard and Plaintiffs’ 17 right to possession of their animals is a clearly established constitutional right. (Doc. 27 at 18 6 (citing San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 19 962, 977 (9th Cir. 2005)). 20 Plaintiffs do not identify any cases clearly establishing a right under the 21 circumstances alleged in the First Amended Complaint, but instead argue that the qualified 22 immunity argument fails because Defendant Smigiel makes unwarranted inferences in his 23 own favor that he had access to the Navajo County Animal Surrender Form, that he did not 24 know he was in wrongful possession of the dogs, that he acted consistently with the form, 25 and that he followed all applicable City and County policies and procedures. 26 In Reply, Defendants assert that they do not request that unwarranted inferences be 27 made, but that their argument stems from Plaintiffs’ own allegations that Smigiel acted 28 pursuant to a form allegedly signed by Plaintiff Griswold. Defendants further assert that 1 Plaintiffs’ Fourteenth Amendment due process claim fails because they identified no 2 process that was due to them, whether they knew or attempted to determine what process 3 might be due, or whether they took any steps to take advantage of that process. 4 Plaintiffs fail to state a Fourteenth Amendment due process claim against Defendant 5 Smigiel in Count Seven. Griswold does not allege that she did not sign the animal 6 surrender form, only that she does not remember signing the animal surrender form, which 7 does not create a reasonable inference that she did not sign the form. Moreover, even if 8 the Court were to make an unwarranted inference that she did not sign the form and the 9 form was somehow fabricated by an unidentified party, Plaintiffs do not allege that Smigiel 10 knew the form was somehow fraudulent. Accordingly, Plaintiffs do not state a due process 11 claim against Smigiel in Count Seven and that Count will be dismissed as alleged against 12 Defendant Smigiel. 13 4. Counts Six, Ten, Eleven, Twelve, and Thirteen 14 Defendants City of Holbrook and Smigiel assert 15 [b]ecause Plaintiffs’ Amended Complaint alleges the relinquishment of any property right in the eight canines, there 16 is no basis for any of the state law claims. It is difficult to 17 conclude that Plaintiffs were owed just compensation (Count VI), that their canines were converted or somehow trespass 18 [sic] upon (Counts IX and X), that the Holbrook Defendants 19 were negligent or grossly negligent (Counts XI and XII), or that the intentionally inflicted emotional distress on Plaintiffs 20 (Count XIII) by honoring the terms of Ms. Griswold’s 21 voluntarily relinquishment of ownership of the cases, and directing their disposition by government authorities. 22 (Doc. 24 at 9.) 23 In Response, Plaintiffs assert that Defendants’ arguments fail because they directly 24 contradict the allegations in Plaintiffs’ First Amended Complaint by assuming Griswold 25 signed the Navajo County Animal Surrender Form when Ms. Griswold alleges that she 26 does not recall signing the form, and further that she did not have the authority to relinquish 27 ownership rights to the dogs. Plaintiffs further assert that even if Smigiel did know about 28 the form and purportedly acted consistently with a good-faith intention, that is not a defense 1 to an action in conversion, which Plaintiffs alleged he committed by forcing Plaintiffs to 2 pay fees to regain possession of the dogs, and by refusing to facilitate return of the eighth 3 dog. 4 The Court will not consider dismissal of claims on a wholesale basis. If Defendants 5 contend Plaintiffs did not state a claim, they must set forth the elements of the individual 6 claims and discuss why Plaintiffs’ allegations do not state a claim under those legal 7 standards.5 Accordingly, the Motion to Dismiss will be denied without prejudice as to the 8 state-law claims. 9 B. Naranjo 10 1. Monell 11 Defendants assert that the claim against Naranjo in his official capacity should be 12 dismissed because there are no allegations that either the City of Show Low or Navajo 13 County6 maintained a policy, practice, or custom that was the moving force behind a 14 constitutional violation. 15 In Response, Plaintiffs assert: Plaintiffs allege widespread constitutional violations— 16 persisting across the Sheriff’s Department, the Superior Court, 17 the Public Works Department, to the City of Holbrook— including the wrongful arrest and detention of Mr. Bellis and 18 Ms. Griswold by MCAT in tactical gear for nonviolent 19 misdemeanors (and where violent crimes arrests are almost nonexistent), followed by the demolition of Mr. Bellis’ and 20 Ms. Griswold’s homes, the destruction or continued 21 withholding of their property and possessions (collectively, “Possessions”) despite demands for their return, and the taking 22 and altering of their dogs, all without any hearing or 23 opportunity to be heard. [FAC ¶¶ 18-53.]. . . These 24 25 5 Based on the limited briefing on the individual state-law claims, Plaintiffs state a plausible claim of conversion against Defendant Smigiel. See Focal Point, Inc. v. U-Haul 26 Co. of Arizona, 746 P.2d 488, 490 (Ariz. Ct. App. 1986) (“Good faith belief or intention is 27 no defense to a conversion action in Arizona”). 28 6 Plaintiffs alleged that Naranjo acted as an agent of Navajo County, although he was a Show Low Police Officer. orchestrated and officially sanctioned actions necessarily 1 demonstrate the existence of a policy or custom as the moving 2 force behind such actions. The policy or custom is clearly deficient and is likely to (and did) lead to constitutional injury, 3 and Plaintiffs were clearly harmed by the policy or custom 4 because their shelter and possessions were taken, including one dog, any possibility for a means of income through dog 5 breeding, and two dogs subsequently sold to make ends meet. 6 The Court cannot ascertain, even from Plaintiffs’ Response, what policy, practices, 7 or customs are allegedly held by Navajo County to support a Monell claim. Indeed, in their 8 Response, Plaintiffs cite to allegations about the actions of the Sheriff’s Department, the 9 Superior Court, the Public Works Department, and the City of Holbrook, and do not 10 mention Navajo County. To the extent Plaintiffs claim that Navajo County sets the policies 11 for each of the entities and that those entities and their employees were working pursuant 12 to policies or practices instituted by Navajo County, such an allegation is not actually made 13 or supported by any facts. Accordingly, Plaintiffs have failed to state a Monell claim 14 against Navajo County or Defendant Naranjo in his official capacity. See, e.g., A.E. ex rel. 15 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (“[A]llegations in a 16 complaint . . . may not simply recite the elements of a cause of action, but must contain 17 sufficient allegations of underlying facts to give fair notice and to enable the opposing party 18 to defend itself effectively . . . [and] must plausibly suggest an entitlement to relief, such 19 that it is not unfair to require the opposing party to be subjected to the expense of discovery 20 and continued litigation. This standard applies to Monell claims . . . .”) (citations omitted); 21 Dougherty v. City of Covina, 654 F.3d 892, 900–901 (9th Cir. 2011) (“Dougherty’s Monell 22 and supervisory liability claims lack any factual allegations that would separate them from 23 the ‘formulaic recitation of a cause of action’s elements’ deemed insufficient by Twombly. 24 . . . The Complaint lacked any factual allegations regarding key elements of the Monell 25 claims, or, more specifically, any facts demonstrating that his constitutional deprivation 26 was the result of a custom or practice of the City of Covina or that the custom or practice 27 was the ‘moving force’ behind his constitutional deprivation.”); Hyer v. City & Cnty. of 28 Honolulu, CIV. NO. 19-00586 HG-RT, 2020 WL 7038953, at *6 (D. Hawaii 2020) (“Prior 1 to 2009, the Ninth Circuit . . . regularly held that a claim of municipal liability under Section 2 1983 was sufficient to withstand a motion to dismiss based on nothing more than bare 3 allegations of an unconstitutional policy, practice, or custom. The low pleading threshold 4 was rejected by the United States Supreme Court in [Iqbal]. Since Iqbal, courts in the 5 Ninth Circuit have repeatedly rejected Monell claims based on conclusory allegations that 6 lack factual content from which one could plausibly infer municipal liability.”) (citations 7 omitted); Brown v. Cnty. of Mariposa, No. 118CV01541LJOSAB, 2019 WL 4956142, at 8 *4 (E.D. Cal. Oct. 8, 2019) (“In order to withstand a motion to dismiss for failure to state 9 a claim, a Monell claim must consist of more than mere formulaic recitations of the 10 existence of an unlawful policy. . . . [W]hile the Court recognizes the inherent difficulty of 11 identifying specific policies absent access to discovery, that is nonetheless the burden of 12 plaintiffs in federal court.”) (citations and internal quotation marks omitted). 13 2. First Amendment Retaliation (Count One) 14 Defendants allege that the First Amendment retaliation claim against Naranjo 15 should be dismissed because Plaintiffs only allege that Naranjo was involved in the 16 execution of the search warrant and filling out certain documents and there are no 17 allegations that Naranjo was aware of Plaintiffs engaging in protected speech, or, 18 consequently, that their alleged speech could even be a substantial or motivating factor in 19 Naranjo’s minimal, and conclusory, alleged conduct. Defendants further assert that the 20 affidavit supporting the warrant shows that Plaintiffs had outstanding arrest warrants, 21 giving probable cause for their arrests and precluding a First Amendment retaliation claim. 22 In Response, Plaintiffs assert that the facts alleged against Naranjo are that he was 23 part of the Major Crimes Apprehension Team that executed search warrants upon Plaintiffs 24 with long rifles, body armor, and other tactical gear, upon which Plaintiffs were arrested 25 and taken to county jail and Naranjo signed the Release Questionnaire for Mr. Bellis, which 26 listed Navajo County Sheriff’s Office and its address as the Agency. Plaintiffs assert that 27 they stated a First Amendment retaliation claim against Defendant Naranjo because “the 28 search warrant affidavit sets forth Plaintiffs’ protected speech regarding Navajo County 1 officials as ‘armed thugs,’ for which a reasonable inference is that the affidavit was 2 attached to the search warrants that Naranjo executed [which creates an inference that 3 Naranjo] was aware of Plaintiffs’ speech regarding Navajo County officials, and executed 4 unconstitutional search warrants in retaliation for that speech.” (Doc. 40 at 9-10.) 5 Generally, the First Amendment prohibits government officials from subjecting an 6 individual to retaliatory actions for engaging in protected speech. Nieves v. Bartlett, 587 7 U.S. 391, 398 (2019). To recover under § 1983 for such retaliation, a plaintiff must prove: 8 (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to 9 adverse action by the defendant that would chill a person of ordinary firmness from 10 continuing to engage in the protected activity; and (3) there was a substantial causal 11 relationship between the constitutionally protected activity and the adverse action. 12 Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022) (citations omitted). Additionally, with 13 a limited exception, a plaintiff must plead the absence of probable cause to support a claim 14 for retaliatory arrest. Nieves, 587 U.S. at 406. An exception exists “for circumstances 15 where officers have probable cause to make arrests, but typically exercise their discretion 16 not to do so. In such cases, an unyielding requirement to show the absence of probable 17 cause could pose ‘a risk that some police officers may exploit the arrest power as a means 18 of suppressing speech.’” Nieves, 139 S. Ct. at 1727 (citation omitted). 19 Plaintiffs allegations against Naranjo are extremely sparse and Plaintiffs do not 20 allege that any of Naranjo’s actions were motivated by Plaintiffs’ speech. The allegations 21 Plaintiffs point to in order to support their arguments in Response to the Motion to Dismiss 22 are unhelpful. Rather than showing where in the First Amended Complaint they made 23 relevant allegations against Defendant Naranjo, Plaintiffs request that the Court make 24 inferences about facts that are simply not alleged in the First Amended Complaint or that 25 are alleged against other Defendants. There is no explanation for why the allegations at 26 issue were not actually made or why Plaintiffs were not clear about the claims alleged 27 against Defendant Naranjo. Plaintiffs request that the Court interpret allegations and facts 28 made against some individual Defendants and extrapolate that Plaintiffs intended to assert 1 such facts against other Defendants. Such a practice has been soundly rejected since Iqbal. 2 See Iqbal, 556 U.S. at 663 (In Bivens and § 1983 actions, plaintiff “must plead that each 3 Government-official defendant, through his own individual actions, has violated the 4 Constitution.”) (emphasis added). Accordingly, Plaintiffs fail to state a First Amendment 5 retaliation claim against Defendant Naranjo in the First Amended Complaint and that claim 6 will be dismissed. 7 3. Fourth Amendment (Count Three) 8 Defendant Naranjo argues that Plaintiffs fail to state a Fourth Amendment claim 9 against him because Plaintiffs had outstanding arrest warrants, which gave the government 10 agents authority to enter Plaintiffs’ home to arrest them since they had reason to believe 11 Plaintiffs were inside. Defendants further assert that the arrest warrants “gave sufficient 12 probable cause for the search warrants.” (Doc. 31 at 11.) In Response, Plaintiffs assert 13 that the First Amended Complaint alleges that Naranjo executed a facially invalid search 14 warrant and executed the search warrants in a manner that resulted in “indiscriminate 15 rummaging through [Plaintiffs’] belongings.” Plaintiffs assert that defendant is not 16 insulated from liability for executing a facially unconstitutional search warrant. Plaintiffs 17 assert that the search warrants were facially invalid because they cited violations of 18 “Obstructing Court Order,” “Show Cause Contempt Failure to Pay,” and a “Probation 19 Violation” in Justice Courts, but do not provide a “fair probability” that any contraband or 20 evidence of such crimes would be found in a particular place. 21 Plaintiffs further assert that the search warrant was not specific and only discusses 22 “[a]ny illegal items or contraband located on the property and or inside structures or 23 vehicles,” which rendered the warrant unconstitutionally overbroad. Plaintiffs assert that 24 they have sufficiently alleged facts demonstrating that Naranjo could not have had a good 25 faith reliance on these facially deficient warrants. 26 In Reply, Defendants asserts that even in the absence of a search warrant, law 27 enforcement personnel, including Naranjo, acted lawfully in the execution of undisputed 28 arrest warrants as to both Plaintiffs. 1 It appears that the Parties dispute whether the Fourth Amendment claim is an 2 unconstitutional arrest claim or an unconstitutional search claim. Defendant appears to 3 suggest that it must be an unconstitutional arrest claim because Plaintiffs have not included 4 enough allegations linking Naranjo to the search of Plaintiffs’ property. However, taking 5 all reasonable inferences in favor of Plaintiffs, Plaintiffs have stated a Fourth Amendment 6 unconstitutional search claim against Defendant Naranjo based on their allegations that 7 Naranjo aided in the execution of the search warrant and that the search warrant was invalid 8 and unconstitutionally overbroad on its face. Accordingly, the Motion to Dismiss will be 9 denied as to the unconstitutional search claim alleged against Naranjo in Count Three. 10 4. Fifth Amendment Takings (Count Five) 11 Defendants assert that Plaintiffs fail to state a Fifth Amendment Takings claim 12 against Defendant Naranjo because there are no allegations that Naranjo took anything and 13 the takings clause does not apply to the exercise of police powers and a voluntary transfer 14 of property does not support a takings claim, and Plaintiffs allege that the taking of the 15 dogs occurred after Plaintiff Griswold signed the animal surrender form. 16 In Response, Plaintiffs assert that Naranjo was not acting pursuant to a valid 17 exercise of police power and Plaintiffs have received no compensation for their property 18 that was taken and not returned, that Naranjo executed the search warrant following which 19 Plaintiffs’ possessions were taken, and it is a reasonable inference that liability can be 20 attributed to Naranjo for effecting a taking of Plaintiffs’ possessions, including Bellis’s and 21 Griswold’s RV and mobile home and all of their personal belongings, including birth 22 certificates, ID cards, social security cards, all personal records, and the eight dogs. 23 Defendants did not meaningfully reply to Plaintiffs’ Response. 24 Here, Plaintiffs allege that Naranjo executed a search warrant on their property, that 25 when they returned to the property, their RV and other possessions were gone, and police 26 officers were involved in the destruction and/or removal of their property. Under these 27 facts, Plaintiffs have stated a plausible Fifth Amendment Takings claim against Defendant 28 Naranjo and the Motion to Dismiss will be denied as to the Fifth Amendment Takings 1 claim.7 2 4. Fourteenth Amendment Due Process (Count Seven) 3 Defendant Naranjo asserts that Plaintiffs fail to state a Fourteenth Amendment due 4 process claim against Naranjo because Plaintiffs did not allege that Naranjo was involved 5 with the taking of dogs, spaying or neutering dogs, or putting the dogs up for adoption, and 6 Griswold surrendered the dogs. 7 In Response, Plaintiffs assert that the due process claim is in relation to Plaintiffs’ 8 possessions that were taken without a court order while the Officers executed the search 9 warrant. Plaintiffs assert that they have constitutionally protected interests in their 10 property, and, at the very least, failed to receive proper notice and a hearing prior to the 11 deprivation of their property, and Naranjo was involved in the deprivation of their property. 12 In Reply, Defendants assert that there are no allegations in the complaint that 13 Naranjo took anything. 14 As noted above, Plaintiffs allege that Naranjo executed a search warrant on their 15 property, that when the returned to the property, their RV and other possessions were gone, 16 and police officers were involved in the destruction and/or removal of their property. 17 Construing all inferences in Plaintiffs’ favor, Plaintiffs have stated a plausible Fourteenth 18 Amendment due process claim against Defendant Naranjo based on the taking and/or 19 destruction of their property without process and the Motion to Dismiss will be denied as 20 to that claim. 21 . . . . 22 . . . . 23 24 7 Naranjo’s argument is incomplete as to the facts alleged in Plaintiffs’ First 25 Amended Complaint in arguing that he is entitled to qualified immunity. Regardless, the Record is simply not developed enough for the Court to determine whether qualified 26 immunity applies to the remaining federal claims at this juncture. See, e.g., O’Brien v. 27 Welty, 818 F.3d 920, 936 (9th Cir. 2016) (“When, as here, defendants assert qualified immunity in a motion to dismiss under Rule 12(b)(6), dismissal is not appropriate unless 28 we can determine, based on the complaint itself, that qualified immunity applies.”) (internal citation omitted). 1 5. State Law Claims 2 a. Notice of Claim 3 Defendants assert that Plaintiffs’ state law claims against Naranjo should be 4 dismissed because Plaintiffs did not comply with Arizona Revised Statutes section 12- 5 821.01 because Naranjo was never properly served with a Notice of Claim. In Response, 6 Plaintiffs assert that Naranjo’s affidavit improperly contradicts Plaintiffs’ allegations that 7 they complied with Arizona Revised Statutes 12-821.01,8 but even if the Court were to 8 convert the Motion to Dismiss into a Motion for Summary Judgment, Plaintiffs did serve 9 Naranjo by mailing him the Notices of Claim to two of his known addresses via Federal 10 Express. In Reply, Defendants assert that service on an individual cannot be accomplished 11 by mail, and Plaintiffs do not purport to have served Naranjo any other way. 12 Defendants contend that service by mail on an individual is not proper “service” 13 under Arizona Revised Statutes section 12-821-01. Arizona Revised Statutes section 12- 14 821.01 relevantly provides Persons who have claims against a public entity, public school 15 or a public employee shall file claims with the person or 16 persons authorized to accept service for the public entity, public school or public employee as set forth in the Arizona 17 rules of civil procedure within one hundred eighty days after 18 the cause of action accrues. 19 Ariz. Rev. Stat. section 12-821.01(A) (emphasis added). 20 In Lee v. State, the Arizona Supreme Court was tasked with deciding the meaning 21 of the word “file” within the statute and what the phrase “as set forth in the Arizona rules 22 of civil procedure” was modifying. 182 P.3d 1169 (Ariz. 2008). In deciding these issues, 23 the Arizona Supreme Court noted, “[t]he legislature could have specified what sort of 24
25 8 In their First Amended Complaint, Plaintiffs alleged that “[i]n accordance with A.R.S. § 12-821.01, Mr. Bellis and Ms. Griswold filed a Notice of Claim with the Navajo County 26 Board of Supervisors, the Navajo County Clerk, John Osgood, David Clouse, Jerry 27 VanWinkle, Sergeant McCracken, Sergeant Esparza, City of Holbrook, Brandon Smigiel, and other relevant County employees.” (Doc. 17 at 9.) 28 1 delivery constitutes a filing, or restricted the evidence relevant to showing something was 2 filed, but it did not.” Id. at 1172. The Supreme Court further reasoned: 3 The dissent argues that the statute precludes Lee from relying on proof of mailing because it requires a claimant to “file . . . 4 as set forth in the Arizona rules of civil procedure.” A.R.S. 5 § 12–821.01(A). . . . The dissent’s reading of the statute omits critical language.[9] Claimants must “file claims with the 6 person or persons authorized to accept service for the public 7 entity or public employee as set forth in the Arizona rules of civil procedure.” Id. (emphasis added). Arizona Rules of Civil 8 Procedure 4.1(h)-(j) clearly “set forth” the “person or persons 9 authorized to accept service” for various public entities. By contrast, nothing in the rules defines how filing must occur. 10 The rules do not prohibit mail as a form of filing nor do they 11 indicate that mailing, though probative, is inadmissible to prove filing. We agree with the dissent that to successfully file 12 requires receipt, but we decline to interpret “file” to forbid a claimant from proving a contested filing by pointing to the fact 13 of mailing. 14 (Id. (emphasis added).) The Court noted that “absent a clearer legislative directive than 15 the word ‘file,’ we will not deprive [Plaintiff] of the benefit of the mail delivery rule.” Id. 16 at 1173. The Court then stated “[w]e hold that a filing under A.R.S. § 12–821.01(A) may 17 be accomplished through the regular mail.” Id. 18 Defendants attempt to distinguish Lee because Lee involved filing with an entity, 19 and not filing on an individual, as in this case. Defendants assert that because Arizona law 20 allows mailing as a method of service on an entity, but does not allow mailing as a method 21 of service on an individual, mailing is inconsistent with Arizona Revised Statutes § 12- 22 821.01’s requirement that the filing be consistent with the Arizona Rules of Civil 23 Procedure. 24 25 26 9 Defendants rely on Simon v. Maricopa Med. Ctr., 234 P.3d 623, 629 (Ariz. Ct. 27 App. 2010) for the rule that filing a claim against an individual is akin to serving that claim, but the Simon Court’s recitation of the rule is dicta as it did not decide the issue of whether 28 mail to an individual’s address constituted filing, and regardless, relied on the same omission rejected by the Arizona Supreme Court in Lee when reciting the rule. 1 This argument is problematic, however, because it ignores Lee’s reasoning that 2 filing is not synonymous with service and that the reference to the Arizona Rules of Civil 3 Procedure in the statute was modifying the phrase relating to who is authorized to accept 4 service. Moreover, while at least one District Court Judge has accepted the distinction 5 made by Defendants,10Arizona Courts have stated that Lee allows mailing as a form of 6 filing, even when the Defendant is an individual. See, e.g., Iknadosian v. Mahon, No. 1 7 CA-CV 13-0205, 2014 WL 2548975, at *2 (Ariz. Ct. App. June 5, 2014) (Arizona Revised 8 Statutes § 12-821.01(A)’s requirement that a person must “‘file’ a copy of the notice of 9 claim with the employee” “is met where a copy of the notice of claim is (1) personally 10 delivered to the employee, either in person or by mail, (2) left with a person of suitable age 11 who is residing with the employee, or (3) served on a person who is authorized to accept 12 service on behalf of the employee.”); see also Kenney v. City of Mesa, No. 1 CA-CV 12- 13 0377 A, 2012 WL 5499424, at *2 (Ariz. Ct. App. Nov. 13, 2012) (“Lee rejected the 14 argument that the statutory language, ‘file as set forth in the Arizona Rules of Civil 15 Procedure,’ requires formal service of a notice of claim as one would file with a court.”) 16 (cleaned up). 17 While none of these opinions are binding, these Arizona Court of Appeals’ decisions 18 are consistent with this Court’s reading of Lee. Accordingly, because Defendants’ entire 19 argument rests on mailing being an insufficient form of service and any consideration of 20 whether the Notice of Claim was actually mailed is not properly resolved on a Motion to 21 Dismiss, the Motion to Dismiss will be denied without prejudice as to the Notice of Claim 22 argument. 23 . . . . 24 . . . . 25 26 10 See Stevens v. Arizona, No. CV-23-00770-PHX-SMB, 2024 WL 418132, at *6 27 (D. Ariz. Feb. 5, 2024) (stating that “Lee simply did not interpret the notice of claim statute or the Arizona Rules of Civil Procedure as they pertain to service on an individual” and 28 finding that an individual must be served in accordance with the Arizona Rules of Civil Procedure.”). 1 b. Failure to State a Claim i. Arizona Constitution Article 2, section 6 (violations 2 of freedom of speech) (Count Two), Arizona 3 Constitution Article 2, § 8 (Count Four) (Unconstitutional search), Arizona Constitution 4 Article 2, section 17 (Count Six) (takings) 5 Defendants assert that to the extent Plaintiffs have failed to allege federal 6 constitutional claims against Naranjo, they have also failed to allege claims falling under 7 the state law constitutional provisions mirroring those federal claims. For the reasons 8 discussed as to the federal claims, the Motion to Dismiss will be granted as to Count Two, 9 but will be denied as to Counts Four and Six. 10 ii. False Arrest and Detention (Count Eight) 11 Defendants assert that Plaintiffs do not state a claim against Naranjo for false 12 imprisonment because the arrest warrant supported the arrest on the misdemeanor charges 13 and Plaintiffs do not otherwise plead a false arrest claim against Naranjo. 14 In Response, Plaintiffs assert that the arrests did not occur “pursuant to valid legal 15 process,” and Defendants do not address that Mr. Bellis was not independently released 16 from jail. 17 The Court could not locate any allegations in the First Amended Complaint that 18 there was not probable cause to arrest Plaintiffs for the misdemeanor violations. As for the 19 allegations that Mr. Bellis was wrongfully kept in jail past the time of his release, there are 20 simply no factual allegations tying Defendant Naranjo to the additional time Mr. Bellis 21 spent in jail. Accordingly, Plaintiffs fail to state a state-law claim of false arrest or false 22 imprisonment against Naranjo and that claim will be dismissed. 23 iii. Conversion (Count Nine), Trespass to Chattels 24 (Count Ten), Negligence (Count Eleven), Gross Negligence (Count Twelve) 25 Defendants assert that Plaintiffs’ allegation that Naranjo participated in the 26 execution of a search warrant, and filled out post-arrest paperwork does not show he 27 converted property, unlawfully trespassed to chattels, or was negligent or grossly negligent 28 in any way. As noted above, Plaintiffs allege that Naranjo executed a search warrant on 1 their property, that when they returned to the property, their RV and other possessions were 2 gone, and police officers were involved in the destruction and/or removal of their property. 3 Construing all inferences in Plaintiffs’ favor, Plaintiffs have stated a plausible state-law 4 claims of conversion, trespass to chattels, negligence, and gross negligence against 5 Defendant Naranjo, and the Motion to Dismiss will be denied as to those claims. iv. Intentional Infliction of Emotional Distress 6 (Count Thirteen) 7 Defendants assert that Plaintiffs’ threadbare allegations against Naranjo do not meet 8 the elements of a claim of intentional infliction of emotional distress. 9 Plaintiffs have plausibly stated a claim of intentional infliction of emotional distress 10 against Naranjo and the Motion to Dismiss will be denied as to that claim. 11 C. Punitive Damages 12 Defendants Smigiel and Naranjo assert that they are immune from punitive damages 13 pursuant to Arizona Revised Statutes § 12-820.04, and that the punitive damages relief for 14 § 1983 claims should be dismissed because Plaintiffs do not allege that Naranjo engaged 15 in wanton, willful, or outrageous conduct. 16 In Response, Plaintiffs assert that their allegations could allow a jury to conclude 17 that Naranjo acted with reckless or callous indifference to Plaintiffs’ rights. Plaintiffs 18 further assert that to the extent Smigiel or Naranjo are found to be acting outside the scope 19 of their employment, they would not be entitled to immunity pursuant to Arizona Revised 20 Statutes § 12-820.04. 21 It is premature at this stage to determine whether Plaintiffs may be entitled to 22 punitive damages, and the request to dismiss that request for relief will be denied. 23 IT IS ORDERED: 24 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 25 Motions to Dismiss (Doc. 24, 31). 26 (2) Defendants Holbrook and Smigiel’s Motion to Dismiss (Doc. 24) is granted 27 in part and denied in part as follows: 28 (a) The Motion is granted as to the Monell claim against the City of 1 | Holbrook and any constitutional claims against Smigiel in his official capacity, any due process claim asserted against Defendant Smigiel pursuant to the Fifth Amendment, and the Fourteenth Amendment due process claim against Defendant Smigiel in Count Seven, 4| and those claims are dismissed without prejudice. 5 (b) — the Motion is otherwise denied as set forth herein. 6 (3) Defendants Navajo County and Naranjo’s Motion to Dismiss (Doc. 31) is 7 | granted in part and denied in part as follows: 8 (a) | The Motion is granted as to any Monell claims asserted against Navajo 9| County or Defendant Naranjo in his official capacity, the First Amendment retaliation claim against Defendant Naranjo in Count One, the state law claim asserted against 11 | Naranjo in Count Two for alleged violations of Arizona Constitution Article 2, and the state-law claim of false arrest or false imprisonment against Naranjo in Count Eight, and 13 | those claims will be dismissed without prejudice. 14 (b) the Motion is otherwise denied as set forth herein. 15 Dated this 27th day of June, 2024. 16 17 a 18 19 _ James A. Teil Org Senior United States District Judge 20 21 22 23 24 25 26 27 28