1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Fernando Corona, No. CV-23-01251-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Matt Hunter, et al., 13 Defendants.
14 15 Plaintiff Fernando Corona, who is represented by counsel, brought this pro se civil 16 rights action pursuant to 42 U.S.C. § 1983 and Arizona state law. (Doc. 18.) Defendants 17 move to dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal 18 Rules of Civil Procedure, and Plaintiff opposes the Motion. (Docs. 19, 21.)1 19 I. Background 20 In his First Amended Complaint, Plaintiff alleges as follows. 21 On June 18, 2022, Plaintiff was at the Salt River with friends and was waiting in 22 line for a bus to take him to his vehicle when a large fight broke out among other people 23 waiting in the line. (Doc. 18 at 2-3.) When Plaintiff observed an older woman begin to 24 assault a teenager, Plaintiff maneuvered his body between the teenager and the oncoming 25 woman. (Id. at 3.) Plaintiff was not engaged in fighting and did not assume a hostile
26 27 1 Defendants’ Motion to Dismiss Plaintiff’s prior Complaint (Doc. 6) will be denied as moot because Plaintiff’s First Amended Complaint supersedes the original Complaint, 28 Defendants did not oppose the Motion to Amend, and Defendants did not incorporate any arguments from their prior Motion into their current Motion to Dismiss. 1 stance. (Id.) Defendant Maricopa County Sheriff’s Office (MCSO) Lieutenant Hunter 2 arrived on the scene, and, without warning, struck Plaintiff on the leg with a collapsible 3 baton, resulting in Plaintiff’s leg being fractured in three places. (Id.) Maricopa County’s 4 training policies regarding threat detection, de-escalation, threat neutralization and crowd 5 control were inadequate. (Id.) 6 Plaintiff alleges four counts as a result of these facts: (1) battery against Defendant 7 Hunter (Count One); (2) negligence against Defendant Hunter (Count Two); (3) excessive 8 force against Defendant Hunter (Count Three)2; and (4) a Monell claim against Maricopa 9 County (Count Four). 10 Defendants move to dismiss on the grounds that Plaintiff fails to state a claim upon 11 which relief may be granted in Counts Three and Four, and Plaintiff’s request for punitive 12 damages should be dismissed. 13 II. Legal Standards 14 Dismissal of a complaint, or any claim within it, for failure to state a claim under 15 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 16 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 17 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 18 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 19 whether a complaint states a claim under this standard, the allegations in the complaint are 20 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 21 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 22 pleading must contain “a short and plain statement of the claim showing that the pleader is 23 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 24 statement need only give the defendant fair notice of what . . . the claim is and the grounds 25 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 26 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 27 28 2 This Count is erroneously labeled Count IV, but the Court will refer to it as Count Three throughout this Order. 1 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 3 pleads factual content that allows the court to draw the reasonable inference that the 4 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 5 III. Discussion 6 A. Excessive Force 7 Defendant Hunter first asserts a specious argument that the Fourth Amendment does 8 not apply to Plaintiff’s excessive force claim because “Plaintiff alleges a brief, split-second 9 interaction where [MCSO Lieutenant] Hunter hit him with a baton in the leg while trying 10 to quell a large fight,” and therefore Plaintiff has not alleged a “seizure” under the Fourth 11 Amendment. (Doc. 19 at 5.) 12 “[T]he text of the Fourth Amendment expressly guarantees the ‘right of the people 13 to be secure in their persons,’ [the] earliest precedents recognize[] privacy as the ‘essence’ 14 of the Amendment—not some penumbral emanation.” Torres v. Madrid, 592 U.S. 306, 15 324 (2021) (citations omitted) (emphasis in original). “The word “seizure” readily bears 16 the meaning of a laying on of hands or application of physical force to restrain movement, 17 even when it is ultimately unsuccessful.” California v. Hodari D., 499 U.S. 621, 625-26 18 (1991). Indeed, “the application of physical force to the body of a person with intent to 19 restrain is a seizure even if the person does not submit and is not subdued.” Torres, 592 20 U.S. at 325. 21 It appears that Defendant argues that because he never subjectively intended to 22 arrest Plaintiff, hitting him in the leg with a baton does not constitute a “seizure” under the 23 Fourth Amendment. From an objective standpoint, hitting someone in the leg with a baton 24 could not have any other intention than to “restrain” and Defendant’s application of 25 physical force on Plaintiff certainly inhibited Plaintiff’s right to be secure in his person. 26 This law is so well established that the Court feels obligated to remind counsel of her 27 obligations under Rule 11 of the Federal Rules of Civil Procedure. 28 Accordingly, the Motion to Dismiss will be denied as to the excessive force 1 argument. 2 B. Monell 3 Defendants argue that Plaintiff has not alleged enough facts to support a Monell 4 claim and Plaintiff’s facts do not show that the alleged failure to train amounted to 5 deliberate indifference and that the failure to train was the result of a deliberate or conscious 6 choice. 7 A municipality cannot be vicariously liable for the torts of its employees under 8 § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–92 (1978). But a governmental 9 entity may be directly liable under § 1983 if its “policy or custom, whether made by its 10 lawmakers or by those whose edicts or acts may fairly be said to represent official policy, 11 inflicts the injury . . . .” Id. at 694.
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1 KAB 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Fernando Corona, No. CV-23-01251-PHX-JAT (CDB) 10 Plaintiff, 11 v. ORDER 12 Matt Hunter, et al., 13 Defendants.
14 15 Plaintiff Fernando Corona, who is represented by counsel, brought this pro se civil 16 rights action pursuant to 42 U.S.C. § 1983 and Arizona state law. (Doc. 18.) Defendants 17 move to dismiss the First Amended Complaint pursuant to Rule 12(b)(6) of the Federal 18 Rules of Civil Procedure, and Plaintiff opposes the Motion. (Docs. 19, 21.)1 19 I. Background 20 In his First Amended Complaint, Plaintiff alleges as follows. 21 On June 18, 2022, Plaintiff was at the Salt River with friends and was waiting in 22 line for a bus to take him to his vehicle when a large fight broke out among other people 23 waiting in the line. (Doc. 18 at 2-3.) When Plaintiff observed an older woman begin to 24 assault a teenager, Plaintiff maneuvered his body between the teenager and the oncoming 25 woman. (Id. at 3.) Plaintiff was not engaged in fighting and did not assume a hostile
26 27 1 Defendants’ Motion to Dismiss Plaintiff’s prior Complaint (Doc. 6) will be denied as moot because Plaintiff’s First Amended Complaint supersedes the original Complaint, 28 Defendants did not oppose the Motion to Amend, and Defendants did not incorporate any arguments from their prior Motion into their current Motion to Dismiss. 1 stance. (Id.) Defendant Maricopa County Sheriff’s Office (MCSO) Lieutenant Hunter 2 arrived on the scene, and, without warning, struck Plaintiff on the leg with a collapsible 3 baton, resulting in Plaintiff’s leg being fractured in three places. (Id.) Maricopa County’s 4 training policies regarding threat detection, de-escalation, threat neutralization and crowd 5 control were inadequate. (Id.) 6 Plaintiff alleges four counts as a result of these facts: (1) battery against Defendant 7 Hunter (Count One); (2) negligence against Defendant Hunter (Count Two); (3) excessive 8 force against Defendant Hunter (Count Three)2; and (4) a Monell claim against Maricopa 9 County (Count Four). 10 Defendants move to dismiss on the grounds that Plaintiff fails to state a claim upon 11 which relief may be granted in Counts Three and Four, and Plaintiff’s request for punitive 12 damages should be dismissed. 13 II. Legal Standards 14 Dismissal of a complaint, or any claim within it, for failure to state a claim under 15 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 16 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 17 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 18 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 19 whether a complaint states a claim under this standard, the allegations in the complaint are 20 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 21 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 22 pleading must contain “a short and plain statement of the claim showing that the pleader is 23 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 24 statement need only give the defendant fair notice of what . . . the claim is and the grounds 25 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 26 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 27 28 2 This Count is erroneously labeled Count IV, but the Court will refer to it as Count Three throughout this Order. 1 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 3 pleads factual content that allows the court to draw the reasonable inference that the 4 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 5 III. Discussion 6 A. Excessive Force 7 Defendant Hunter first asserts a specious argument that the Fourth Amendment does 8 not apply to Plaintiff’s excessive force claim because “Plaintiff alleges a brief, split-second 9 interaction where [MCSO Lieutenant] Hunter hit him with a baton in the leg while trying 10 to quell a large fight,” and therefore Plaintiff has not alleged a “seizure” under the Fourth 11 Amendment. (Doc. 19 at 5.) 12 “[T]he text of the Fourth Amendment expressly guarantees the ‘right of the people 13 to be secure in their persons,’ [the] earliest precedents recognize[] privacy as the ‘essence’ 14 of the Amendment—not some penumbral emanation.” Torres v. Madrid, 592 U.S. 306, 15 324 (2021) (citations omitted) (emphasis in original). “The word “seizure” readily bears 16 the meaning of a laying on of hands or application of physical force to restrain movement, 17 even when it is ultimately unsuccessful.” California v. Hodari D., 499 U.S. 621, 625-26 18 (1991). Indeed, “the application of physical force to the body of a person with intent to 19 restrain is a seizure even if the person does not submit and is not subdued.” Torres, 592 20 U.S. at 325. 21 It appears that Defendant argues that because he never subjectively intended to 22 arrest Plaintiff, hitting him in the leg with a baton does not constitute a “seizure” under the 23 Fourth Amendment. From an objective standpoint, hitting someone in the leg with a baton 24 could not have any other intention than to “restrain” and Defendant’s application of 25 physical force on Plaintiff certainly inhibited Plaintiff’s right to be secure in his person. 26 This law is so well established that the Court feels obligated to remind counsel of her 27 obligations under Rule 11 of the Federal Rules of Civil Procedure. 28 Accordingly, the Motion to Dismiss will be denied as to the excessive force 1 argument. 2 B. Monell 3 Defendants argue that Plaintiff has not alleged enough facts to support a Monell 4 claim and Plaintiff’s facts do not show that the alleged failure to train amounted to 5 deliberate indifference and that the failure to train was the result of a deliberate or conscious 6 choice. 7 A municipality cannot be vicariously liable for the torts of its employees under 8 § 1983. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691–92 (1978). But a governmental 9 entity may be directly liable under § 1983 if its “policy or custom, whether made by its 10 lawmakers or by those whose edicts or acts may fairly be said to represent official policy, 11 inflicts the injury . . . .” Id. at 694. To state a claim based on a policy, practice, or custom 12 of Maricopa County, Plaintiff must allege facts (1) that his constitutional rights were 13 violated by an employee or employees of the Defendant; (2) that the Defendant has customs 14 or policies that amount to deliberate indifference; and (3) that the policies or customs were 15 the moving force behind the violation of Plaintiff’s constitutional rights in the sense that 16 the Defendant could have prevented the violation with an appropriate policy. See Gibson 17 v. Cnty. of Washoe, 290 F.3d 1175, 1193-94 (9th Cir. 2002). “Policies of omission 18 regarding the supervision of employees . . . can be policies or customs that create . . . 19 liability . . . , but only if the omission reflects a deliberate or conscious choice to 20 countenance the possibility of a constitutional violation.” Id. at 1194 (quotations omitted). 21 A “decision not to train certain employees about their legal duty to avoid violating 22 citizens’ rights may rise to the level of an official government policy for purposes of 23 § 1983.” Connick v. Thompson, 563 U.S. 51, 60 (2011). To support a Monell claim for 24 failure to train under § 1983, a plaintiff must allege facts demonstrating that the local 25 government’s failure to train amounts to “deliberate indifference to the rights of persons 26 with whom the [untrained employees] come into contact.” Connick, 563 U.S. at 61 (citing 27 City of Canton v. Harris, 489 U.S. 378, 388 (1989)). 28 Deliberate indifference may be shown if there are facts to support that “in light of 1 the duties assigned to specific officers or employees, the need for more or different training 2 is obvious, and the inadequacy so likely to result in violations of constitutional rights, that 3 the policy-makers . . . can reasonably be said to have been deliberately indifferent to the 4 need.” Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (citing Canton, 489 U.S. at 5 390). While “[a] pattern of similar constitutional violations by untrained employees is 6 ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to 7 train” Connick, 563 U.S. at 62, a plaintiff may still prove a failure-to-train claim without 8 showing a pattern of constitutional violations where a violation “may be a highly 9 predictable consequence of a failure to equip law enforcement officers with specific tools 10 to handle recurring situations.” Long v. Cnty. of L.A., 442 F.3d 1178, 1186 (9th Cir. 2006) 11 (internal citation omitted). In such instances, “failing to train could be so patently obvious 12 that [an entity] could be liable under § 1983 without proof of a pre-existing pattern of 13 violations.” Connick, 563 F.3d at 64. A plaintiff may prove the existence of a custom or 14 informal policy with evidence of repeated constitutional violations for which the errant 15 municipal officials were not discharged or reprimanded. See Gillette v. Elmore, 979 F.2d 16 1342, 1348 (9th Cir. 1992); Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001). 17 Here Plaintiff alleges, Defendant Matt Hunter’s excessive use of force against 18 Plaintiff, which constituted a violation of his rights as 19 guaranteed by the 4th Amendment to the United States Constitution, was the result of a policy, custom or practice of 20 the MCSO, for which Maricopa County is liable. . . . Maricopa 21 County, through MCSO, failed to adequately train Defendant Matt Hunter in the appropriate use of force. . . . Maricopa 22 County’s failure to train amounts to a deliberate indifference 23 to the rights of persons with whom deputies, including Defendant Matt Hunter, come into contact during their official 24 duties. . . . The inadequacy of the training provided to 25 Defendant Matt Hunter caused the constitutional deprivation suffered by Plaintiff described herein. . . . . As a result of 26 Defendant Maricopa County’s deliberate indifference towards 27 the rights of Plaintiff and others, Plaintiff has suffered damages. 28 (Doc. 18 at 6-7.) 1 Plaintiff alleges no facts to support these conclusory allegations and threadbare 2 recitals of a cause of action are insufficient to state a claim upon which relief may be 3 granted. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the 4 elements of a cause of action, supported by mere conclusory statements, do not suffice” to 5 state a claim upon which relief may be granted); see also Sadoski v. Mosley, 435 F.3d 1076, 6 1080 (9th Cir. 2006) (affirming dismissal of a municipal defendant pursuant to Rule 7 12(b)(6) of the Federal Rules of Civil Procedure because a § 1983 claim against a municipal 8 defendant “cannot succeed as a matter of law” unless a plaintiff: (1) contends that the 9 municipal defendant maintains a policy or custom pertinent to the plaintiff’s alleged injury; 10 and (2) explains how such policy or custom caused the plaintiff’s injury.). 11 Accordingly, the Monell claim against the Maricopa County will be dismissed. 12 C. Punitive Damages 13 Defendant argues that Plaintiff is not entitled to punitive damages because he did 14 not act with an “evil mind.” A request for punitive damages is not a separate claim, but 15 rather a request for a particular relief. Further, whether punitive damages are warranted is 16 an issue reserved for the jury. See Pacific Mut. Life Ins. Co. v. Haslip, 111 U.S. 1, 16 17 (1991) (noting that, with respect to punitive damages, “[t]his has been always left to the 18 discretion of the jury, as the degree of punishment to be thus inflicted must depend on the 19 peculiar circumstances of each case” ) (quotation omitted); Smith v. Wade, 461 U.S. 30, 20 48, 54, 56 (1983) (“punitive damages are awarded in the jury’s discretion”). A jury may 21 assess punitive damages in a § 1983 action when a defendant’s conduct “is shown to be 22 motivated by evil motive or intent, or when it involves reckless or callous indifference to 23 the federally protected rights of others.” Smith, 461 U.S. at 56. 24 In their Motion to Dismiss, Defendants argue that Hunter was not carrying out a 25 “criminal investigation,” but he nonetheless hit Plaintiff in the leg with a baton. Plaintiff 26 alleges that he posed no threat and was not involved in the fighting. Under these 27 circumstances, a reasonable jury could find that Hunter acted with callous indifference to 28 Plaintiff’s federally protected rights. Accordingly, Defendants’ request to dismiss 1 | Plaintiff's request for relief is denied.* 2| ITIS ORDERED: 3 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 4| Motions to Dismiss (Docs. 6, 19). 5 (2) Defendants’ Motion to Dismiss (Doc. 19) is granted as to Count Four and 6| is otherwise denied. 7 (3) Plaintiff's Monell claim in Count Four is dismissed without prejudice 8 | pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 9 (4) Defendant Maricopa County is dismissed without prejudice. 10 (5) | The remaining claims in this action are 1) battery against Defendant Hunter 11 | (Count One); (2) negligence against Defendant Hunter (Count Two); and (3) excessive force against Defendant Hunter (Count Three). 13 (6) Defendants’ Motion to Dismiss (Doc. 6) is denied as moot. 14 Dated this 13th day of December, 2023. 15 16 a 17 18 _ James A. Teil Org Senior United States District Judge 19 20 21 22 23 24 25 26 a > Plaintiff may not seek punitive damages as to his state law claims. See Ariz. Rev. 28) Stat. § 12-820.04 (“[nJeither a public entity nor a public employee acting within the scope of his employment is liable for punitive or exemplary damages.”).