Daurio v. Arizona, State of

• Court: District Court, D. Arizona
• Decided: June 24, 2025
• Docket: 2:25-cv-00001
• Status: Unknown

Opinion

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

Ayden

Daurio, ) No. CV-25-00001-PHX-SPL 9 ) ) 10 Plaintiff, ) ORDER vs. ) 11 ) ) 12 State of Arizona, et al., )

) 13 Defendants. ) ) 14 ) 15 Before the Court is Defendants’ Motion to Dismiss (Doc. 6), Plaintiff’s Response 16 (Doc. 9), and Defendants’ Reply (Doc. 10). For the following reasons, the Court will grant 17 Defendants’ Motion in part and deny the Motion in part.1 18 I. BACKGROUND 19 This case (“Daurio II”) relates to another action in this District, Daurio v. Arizona 20 Department of Child Safety, et al., No. CV-18-03299-PHX-GMS (“Daurio I”). The 21 plaintiff in Daurio I, Steven Daurio (“Father”), is the father of the current Plaintiff, Ayden 22 Daurio. Daurio I arose out of the same Department of Child Safety (“DCS”) investigation 23 and subsequent proceedings as the case at hand. See Daurio v. Arizona Dep’t of Child 24 Safety, No. CV-18-03299-PHX-GMS, 2020 WL 6940812 (D. Ariz. Nov. 25, 2020), aff’d 25 sub nom. Daurio v. Faust, No. 22-15248, 2023 WL 6803553 (9th Cir. Oct. 16, 2023). 26

27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motion is suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. R. 28 Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 The DCS investigation at issue in both Daurio I and Daurio II began on August 5, 2 2016, when Plaintiff Ayden Daurio, then a minor, reported to his school principal that his 3 father, Steven Daurio, “had hit him with a pool skimmer pole.” (Doc. 1-2 ¶¶ 16–17). When 4 Plaintiff returned to school on Monday, he was interviewed by DCS criminal conduct 5 investigator Jamie Jenkins (“Jenkins.”). (Id. ¶ 21). Jenkins “performed a global assessment 6 of Ayden and found him healthy and free of injuries, marks, or bruises” and “reported that 7 Ayden indicated he ‘felt safe’ with both of his parents.” (Id. ¶ 22). Having determined that 8 Ayden was “safe,” Jenkins closed the DCS investigation the following day pending 9 supervisory approval. (Id. ¶¶ 23–24). Plaintiff continued to stay with his father from August 10 5 through August 10, 2016, and his father was unaware of the investigation. (Id. ¶ 25). 11 However, on August 10, a different DCS caseworker, Defendant Reynolds, met with 12 Plaintiff’s mother and thereafter began “documenting a plan to remove Ayden from 13 Father’s custody.” (Id. ¶¶ 26–27). Reynolds and her supervisor, Defendant Passmore, 14 jointly prepared a TDM (“Team Decision Meeting”) Referral form to request a formal 15 TDM. (Id. ¶¶ 28–30). Plaintiff alleges that Reynolds and Passmore made two false entries 16 on the TDM Referral form: (1) they falsely noted on the form that the TDM was part of an 17 ongoing joint criminal investigation when “[n]o criminal investigation was ongoing,” and 18 (2) they falsely noted on the form that law enforcement had instructed DCS not to talk to 19 Plaintiff’s father due to this nonexistent “ongoing criminal investigation.” (Id. ¶¶ 32–34). 20 On August 12, 2016, the TDM was attended by Plaintiff’s mother, her husband, her 21 nanny, Reynolds, and Passmore. (Id. ¶ 36–37). Plaintiff’s father was given no notice of the 22 meeting and was “deliberately excluded,” as were Father’s family, Plaintiff’s counselor, 23 neighbors, Plaintiff’s attorney, and Jenkins, who had written the initial report finding 24 Plaintiff “safe” and without bruises. (Id. ¶¶ 38–39). After the TDM, Reynolds and 25 Passmore created a TDM Summary report “with DCS’ official position that Ayden needed 26 to be removed from Father’s custody.” (Id. ¶ 41).2 Plaintiff alleges that numerous

27 2 To extent Plaintiff believes the TDM Summary report attached to Defendants’ 28 Motion should be sealed (Doc. 9 at 4 n.1), Plaintiff may file a Motion to Seal with his legal 1 knowingly false statements were included in the TDM Summary, including false 2 indications that there were “concerns that there are current allegations against [Father] by 3 the previous nanny and mother for sexual abuse, domestic violence, substance abuse, and 4 physical abuse,” and a false indication that Plaintiff had been with his mother since the 5 incident and was afraid to return to his father. (Id. ¶¶ 42–45). 6 Reynolds and Passmore then “provided the TDM Summary to Mother” and 7 allegedly “directed Mother to file a Petition for Order of Protection in her ongoing Family 8 Court case” using the TDM Summary. (Id. ¶¶ 47–48). She followed their directions and 9 was granted an ex parte Petition for Order of Protection on August 15, 2016, after which 10 Plaintiff’s father was barred from making any contact with him. (Id. ¶¶ 51–54). She then 11 filed a Petition to Modify Legal Decision Making, Parenting Time, and Child Support, after 12 which Plaintiff’s father’s parenting time was suspended. (Id. ¶¶ 55–56). Plaintiff only saw 13 his father “during a 1 hour counseling session, at a truancy hearing, and once for 5 minutes” 14 over the following ten months. (Id. ¶ 57). 15 “Two months after Father’s parenting time had been suspended Reynolds and 16 Passmore finally scheduled Father [an] interview regarding the August allegation.” (Id. ¶ 17 58). However, Reynolds and Passmore did not allow Father’s counsel to sit with him during 18 his interview, did not investigate any of the exculpatory evidence provided by Father’s 19 counsel, did not place that letter or its exhibits into DCS’s files, did not interview any of 20 his exculpatory witnesses, closed and completed the DCS investigation three days after 21 Father’s interview, deleted Father’s mailing address from the DCS system so only Mother 22 would receive any future DCS correspondence, and failed to send Father a required Notice 23 of Proposed Substantiation of the child abuse findings through which he could challenge 24 the proposed findings. (Id. ¶¶ 59–77). Plaintiff’s father only learned about the Notice of 25 Proposed Substantiation at a May 9, 2017 Family Court custody hearing and ultimately 26 argument on the matter after meeting and conferring with Defendants about whether the 27 issue can be resolved without this Court’s intervention. However, this Court also notes that the report is currently unsealed in Daurio I. (See Doc. 94-3 in Daurio v. Arizona Dep’t of 28 Child Safety, No. CV-18-03299-PHX-GMS). 1 received the letter in June, after which he “spent the balance of the summer trying to get 2 DCS to reconsider the substantiation of the abuse allegation.” (Id. ¶¶ 80–84). Senior DCS 3 officials ultimately reversed and removed the substantiation finding, allowing Plaintiff’s 4 father to pursue reversal of the custody orders. (Id. ¶¶ 85–86). 5 The Family Court held an evidentiary hearing on November 28, 2018 on all the 6 matters arising out of the DCS investigation, and it issued orders (1) granting Father sole 7 legal decision-making authority for Plaintiff, (2) finding that unrestricted parenting time 8 with Mother would harm Plaintiff’s mental, moral, and/or emotional health, (3) restricting 9 Mother’s parenting time and ordering that Plaintiff reside with Father and have no contact 10 with Mother for 30 days, (4) finding no evidence in the DCS file indicating observed 11 injuries to Plaintiff, and (5) finding that Plaintiff’s father did not commit an act of child 12 abuse. (Id. ¶ 87). In sum, Plaintiff contends that the State Defendants violated state laws 13 and DCS policies intended to protect familial relationships, unnecessarily delayed 14 resolution of Family Court litigation, deprived Plaintiff of 15 months of time with his 15 father, and prevented his father from protecting Plaintiff from his mother’s neglect. (Id. ¶¶ 16 88–92). 17 II. LEGAL STANDARD 18 To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “a 19 short and plain statement of the claim showing that the pleader is entitled to relief” so that 20 the defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl. 21 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). A court may 22 dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) 23 lack of a cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal 24 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When 25 deciding a motion to dismiss, all allegations of material fact in the complaint are taken as 26 true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 27 568 F.3d 1063, 1067 (9th Cir. 2009). 28 1 III. DISCUSSION 2 A. Claim Preclusion 3 Defendants first argue that the prior lawsuit (Daurio I) “undeniably bars the current 4 Complaint” under the doctrine of res judicata. (Doc. 6 at 5). “Under res judicata (claim 5 preclusion), a final judgment on the merits of an action precludes the parties or their privies 6 from re-litigating issues that were or could have been raised in a prior action.” Tug Constr., 7 LLC v. Harley Marine Fin., LLC, 412 F. Supp. 3d 1293, 1301 (W.D. Wash. 2019) (citing 8 In re Imperial Corp. of Am., 92 F.3d 1503, 1506 (9th Cir. 1996)). A party must establish 9 three elements to utilize this defense: “(1) an identity of claims, (2) a final judgment on the 10 merits, and (3) privity between parties.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l 11 Plan. Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). Defendants argue (1) that Daurio I and 12 II share a common identity of claims because the two suits arise out of the same 13 transactional nucleus of facts, (2) that Daurio I was adjudicated on the merits, and (3) that 14 the parties are in privity because the plaintiffs in both cases “have a sufficient commonality 15 of interest to implicate res judicata.” (Doc. 6 at 5–6). 16 The Court need not waste too much time on Defendants’ claim preclusion argument 17 because Defendants have failed to establish privity between the plaintiffs in Daurio I and 18 Daurio II.3 As Plaintiff points out, none of the recognized exceptions to the rule against 19 nonparty claim preclusion have been established by Defendants here, as Plaintiff “had no 20 agreement to be bound by his father’s case,” “had no substantive legal relationship with 21 his father,” “was not adequately represented” by his father in the prior case, “did not control 22 his father’s litigation,” is not bringing suit as a designated representative, and is not 23 involved in a special statutory scheme. (Doc. 9 at 3 (citing Taylor v. Sturgell, 553 U.S. 880, 24 893–96 (2008))); see also Fox v. MHM Health Pros. LLC, No. CV-23-00190-PHX-DWL, 25 2024 WL 4364133, at *7 (D. Ariz. Sept. 30, 2024) (“The party seeking preclusion has the 26 27 3 The Court also notes that in their Reply (Doc. 10), Defendants fail to respond to any of Plaintiff’s counterarguments regarding claim preclusion. In fact, claim preclusion is 28 not mentioned at all in the Reply. 1 burden of establishing the necessary elements.” (citing Media Rights Techs., Inc. v. 2 Microsoft Corp., 922 F.3d 1014, 1021 (9th Cir. 2019))). The mere fact that the plaintiffs in 3 Daurio I and Daurio II are father and son, and their cases arise out of the same DCS 4 investigation, is not enough, as “[f]amilial relationship does not necessarily result in 5 privity,” Evans v. Gilmore, No. 15-cv-01772-MEJ, 2015 U.S. Dist. LEXIS 94995, at *12 6 (N.D. Cal. July 21, 2015), and Defendants have provided no on-point case law to support 7 their argument that Plaintiff and his father are in privity here. Accordingly, Defendants’ 8 res judicata argument must fail. 9 B. Judicial Deception 10 Plaintiff’s first count in the Complaint is for Judicial Deception in violation of 42 11 U.S.C. § 1983 against Defendants Reynolds and Passmore in their individual capacities. 12 (Doc. 1-2 ¶¶ 93–102). There is “a constitutional right under the Due Process Clause of the 13 Fourteenth Amendment to be free from judicial deception and fabrication of evidence in 14 the context of civil child custody cases.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 15 1146 (9th Cir. 2021). 16 As a preliminary matter, Defendants argue that Reynolds and Passmore are entitled 17 to qualified immunity for the judicial deception claim because it is based on the same 18 operative facts as the familial interference claim in Daurio I, where the district court held, 19 and the Ninth Circuit affirmed, that Defendants were entitled to qualified immunity. See 20 Daurio v. Faust, No. 22-15248, 2023 WL 6803553 (9th Cir. Oct. 16, 2023). 21 As the Ninth Circuit has explained, 22 Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that 23 the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the 24 challenged conduct. A government official violates clearly established law when, at the time of the challenged conduct, 25 the contours of a right are sufficiently clear that every reasonable official would have understood that what he is 26 doing violates that right. Although there need not be a case directly on point, existing precedent must have placed the 27 statutory or constitutional question beyond debate. 28 1 Shooter v. Arizona, 4 F.4th 955, 961 (9th Cir. 2021) (internal citations and quotation marks 2 omitted). 3 In David v. Kaulukukui, 38 F.4th 792 (9th Cir. 2022), the Ninth Circuit observed 4 that “caselaw clearly establishes that, as part of the right to familial association, parents 5 and children have a ‘right to be free from judicial deception’ in child custody proceedings 6 and removal orders.” Id. at 800; see also Benavidez, 993 F.3d at 1152 (“[M]aterial 7 omissions and misrepresentations with a deliberate disregard for the truth to a juvenile 8 court would violate the Constitution.”); Hardwick v. Cnty. of Orange, 844 F.3d 1112, 1119 9 (9th Cir. 2017) (“[T]he knowing use of false evidence [is] absolutely and obviously 10 irreconcilable with the Fourteenth Amendment’s guarantee of Due Process in our courts.”). 11 In Kaulukukui, the plaintiff alleged that if a family court judge had been informed of a 12 relevant custody order that had been omitted from a petition for protective order, the 13 protective order never would have been granted. The district court denied a motion to 14 dismiss the plaintiff’s § 1983 claim for violating the constitutional right to familial 15 association, finding that the police department employee being sued was not entitled to 16 qualified immunity. The Ninth Circuit affirmed. See generally id. 17 Here, the Court finds that Plaintiff has pled facts showing that Defendants violated 18 a clearly established constitutional right. Accordingly, they are not entitled to qualified 19 immunity for the judicial deception claim. The Court will therefore proceed with analyzing 20 whether the judicial deception claim is adequately pled under the Rule 12(b)(6) standard. 21 “To support a § 1983 claim of judicial deception, a plaintiff must show that the 22 defendant deliberately or recklessly made false statements or omissions that were material 23 to the finding . . . .” Benavidez, 993 F.3d at 1146 (quoting KRL v. Moore, 384 F.3d 1105, 24 1117 (9th Cir. 2004)). “A plaintiff who provides direct evidence of false statements can 25 allege deliberate fabrication of evidence in violation of constitutional due process 26 guarantees.” Id. “To successfully allege a violation of the constitutional right to be free 27 from judicial deception, the [plaintiff] must make out a claim that includes (1) a 28 misrepresentation or omission (2) made deliberately or with a reckless disregard for the 1 truth, that was (3) material to the judicial decision.” Id. at 1147. Defendants contend that 2 Plaintiff has failed to state a claim for judicial deception because (1) the statements in the 3 TDM Summary are not false, (2) the perceived false statements were not material, (3) the 4 TDM Summary was not drafted by the State Defendants, and (4) Plaintiff’s mother, not 5 Reynolds and Passmore, provided the TDM Summary to the Family Court. (Doc. 6 at 8– 6 12). 7 1. Misrepresentations or Omissions 8 Plaintiff has adequately pled that Defendants made false statements in the TDM 9 Summary. Plaintiff alleges the following false statements and omissions: 10 (1) “In the TDM Summary Reynolds and Passmore falsely indicated that 11 there were ‘concerns that there are current allegations against [Father] 12 by the previous nanny and mother for sexual abuse, domestic 13 violence, substance abuse, and physical abuse.’ Reynolds and 14 Passmore knew this entry was false because as the DCS file reflected, 15 there were no current allegations and all prior allegations had been 16 found to be unsubstantiated.” (Doc. 1-2 ¶ 43). 17 (2) “In the TDM Summary Reynolds and Passmore falsely indicated that 18 Ayden had been with Mother ‘since the incident and was afraid to 19 return to [Father].’ Reynolds and Passmore knew this was false 20 because the DCS investigation itself reflected that Ayden was in 21 Father’s custody . . . for all but two days since the alleged incident.” 22 (Id. ¶ 44). 23 (3) “In the TDM Summary Reynolds and Passmore falsely indicated that 24 Ayden was afraid to return to father. Reynolds and Passmore knew 25 this was false because the DCS file reflected . . . [that] Ayden told 26 Investigator Jenkins that he felt safe with Father” (Id. ¶ 45). 27 (4) “Reynolds and Passmore also omitted all the information that Father 28 would have submitted had defendants provided him with notice of the 1 TDM.” (Id. ¶ 46). 2 As to the first statement, Defendants argue that this cannot be a false statement 3 because it merely expresses “concerns” about allegations, and “a concern cannot be false 4 statement.” (Doc. 6 at 9). Furthermore, they argue that “it is undeniable that being struck 5 with a pool skimmer pole as reported constitutes physical abuse.” (Id.). The Court agrees 6 that these “concerns,” based on both the pool skimmer allegation and allegations by the 7 mother and nanny during the TDM, cannot constitute a false statement, and as such, cannot 8 give rise to a judicial deception claim. 9 However, taking all material facts in the Complaint as true and construing them in 10 the light most favorable to Plaintiff, the second and third statements are false statements 11 for purposes of a judicial deception claim. The claims that Plaintiff was with his mother 12 since the incident and was afraid to return to his father are belied by Plaintiff’s well-pleaded 13 allegations that (1) the investigative report from Jenkins indicated that Plaintiff “felt safe” 14 with both of his parents, including his father, and (2) Plaintiff stayed with his father from 15 August 5 through August 10, 2016, which were the days following the incident. (Doc. 1-2 16 ¶¶ 20–25). 17 Furthermore, Plaintiff describes numerous pieces of exculpatory evidence that, had 18 Father been allowed to attend the TDM, he would have been able to present and would 19 have been included in the TDM Summary. (Doc. 9 at 6–7). It is not clear how Defendants 20 could have “omitted” specifically exculpatory evidence that they were not aware of at the 21 time, as Father had no opportunity to present it to them. However, they certainly knew they 22 were omitting Father’s perspective on the incident in its entirety. Plaintiff also alleges that 23 Defendants falsely indicated that they did not speak to Father due to an ongoing criminal 24 investigation despite (1) knowing that there was no ongoing criminal investigation and (2) 25 having no contact with law enforcement before preparing the form. (Doc. 1-2 ¶¶ 33–36). 26 This could constitute an omission giving rise to a claim for judicial deception. 27 2. Made Deliberately or With Reckless Disregard for Truth 28 Next, the Court must determine whether the false statements and omissions were 1 made deliberately or with reckless disregard for the truth. Plaintiff has alleged facts in 2 support of this element, given that Defendants would have known the exculpatory contents 3 of Jenkins’ investigative report, they knew there was no criminal investigation ongoing, 4 and they knew they were excluding Father from the TDM. Furthermore, Plaintiff alleges 5 facts regarding a deliberate “plan” devised by Reynolds and Mother to remove Plaintiff 6 from Father’s custody. (Id. ¶¶ 26–29). These facts, if true, give rise to a finding that the 7 false statements and omissions were made deliberately or with a reckless disregard for the 8 truth. 9 3. Material to Judicial Decision 10 Defendants argue that “[e]ven if the second and third statements were untrue and 11 deliberately misrepresented in the TDM Summary,” they were not material to the Family 12 Court’s decision to issue an Order of Protection on August 15, 2016. (Doc. 6 at 10). 13 According to Defendants, even eliminating the allegedly false statements from the Family 14 Court’s consideration, “the Court is still left with the fact that the minor reported to school 15 officials that Father struck him with a pool skimmer pole and that the incident left visible 16 marks and bruises visible days later. This fact alone is sufficient for the order of protection 17 to issue.” (Id. (citation omitted)). However, because this report was belied by Jenkins’ 18 investigative report, which found Plaintiff free of injuries or marks, reported that he “felt 19 safe” with his parents, and determined that he was safe, it is not clear that the Family Court 20 would have issued the ex parte Order of Protection but for the false statements and 21 omissions. (Doc. 1-2 ¶¶ 22–23). Defendants’ reliance on Wright v. Southern Arizona 22 Children’s Advocacy Center, No. CV-21-00257-TUC-JGZ, 2024 WL 4277877 (D. Ariz. 23 Sept. 24, 2024), is inapposite. In that case, which was at the summary judgment stage, the 24 court found that alleged false statements were immaterial to a court’s decision to grant 25 temporary custody of a child to DCS because the facts showed that the child “has stated he 26 was hit with objects and had marks on his body from discipline.” Id. at *9. The source of 27 the marks was disputed, but it was undisputed that the child had bruises on his body. Here, 28 however, Jenkins’ report indicated that there were no marks or bruises on Plaintiff. 1 Furthermore, the child in Wright reported during the initial investigation that his 2 stepmother regularly used physical discipline on him, whereas during Jenkins’ 3 investigation, Plaintiff stated that he “felt safe” with his parents. Id. at *7; (Doc. 1-2 ¶ 22). 4 Additionally, even assuming the Family Court placed significant weight on the initial 5 report that Plaintiff was struck with a pool skimmer pole and had visible marks and bruises, 6 had Defendants not excluded Father from the TDM, the exculpatory evidence he could 7 have presented (e.g., a photo of Plaintiff smiling after getting out of the pool, and an 8 affidavit from his babysitter that they had been wrestling in the pool) may have also 9 weighed against issuance of the protection order. (Doc. 1-2 ¶ 65). It is difficult to determine 10 what the Family Court would or would not have done in the absence of the alleged false 11 statements or omissions; however, construing the facts in a light most favorable to Plaintiff, 12 it is certainly plausible that but for those false statements or omissions, the ex parte 13 protection order would not have been issued. 14 Defendants’ ancillary argument that there is no evidence that Reynolds and 15 Passmore, as opposed to a TDM Facilitator, drafted the TDM Summary is also 16 unavailing—as Defendants themselves acknowledge, at this stage, Plaintiff’s well-pleaded 17 factual allegations must be construed as true. (Doc. 6 at 11). And regardless of the fact that 18 Mother, not Reynolds and Passmore, provided the TDM Summary to the Family Court, 19 assuming it is true that Reynolds and Passmore made materially false statements in the 20 TDM Summary, and that the Family Court relied on these statements and omissions, 21 Plaintiff’s judicial deception claim must move forward. 22 C. Gross Negligence 23 Plaintiff’s second claim is for Gross Negligence against the State of Arizona. (Doc. 24 1-2 ¶¶ 103–08). He argues that the State is responsible and liable for Reynolds and 25 Passmore’s “gross, willful or wanton conduct in violation of Arizona statutes, and DCS 26 policies and procedures” under respondeat superior. (Id.). Defendants argue that this claim 27 must fail for four reasons: (1) Plaintiff failed to allege that he suffered bodily harm, (2) 28 Defendants owed no duty to Plaintiff, (3) no tort for negligent investigation exists, and (4) 1 Plaintiff has no right to a reasonable investigation. (Doc. 6 at 13–16). 2 “A party is grossly negligent if they know, or have reason to know, facts that would 3 lead a reasonable person to recognize their conduct created an unreasonable risk of bodily 4 harm and involved a high probability of substantial harm.” Garibay v. Johnson in & for 5 Cnty. of Pima, 565 P.3d 236, 246 (Ariz. 2025). As another court in this District has 6 observed, “[i]n most Arizona cases . . . courts have written that gross negligence must 7 involve an unreasonable risk of ‘bodily harm.’ Some Arizona cases remove the ‘bodily 8 harm’ language from the rule statement, but most of these cases still involve bodily harm.” 9 Danishek v. United States, No. CV-23-08131-PCT-JJT, 2024 WL 4870497, at *4 n.2 (D. 10 Ariz. Nov. 22, 2024) (citation omitted). Plaintiff argues that “a gross negligence claim does 11 not require an allegation of bodily harm,” but merely a showing of “gross, willful, or 12 wanton conduct.” (Doc. 9 at 8). While it is true that the gross negligence standard only 13 requires that a defendant’s conduct create an unreasonable risk of bodily harm, and a 14 plaintiff need not show that actual bodily harm occurred, it is not true that this “risk of 15 bodily harm” requirement is dispensable when making a claim for gross negligence, and 16 neither of the cases Plaintiff cites support such a proposition. Noriega cites both the “bodily 17 harm” standard and the more general “gross, willful, or wanton conduct” standard. See 18 Noriega v. Town of Miami, 407 P.3d 92, 100 (Ariz. Ct. App. 2017). And Roebuck was a 19 medical negligence case where the plaintiff did suffer bodily harm. See Roebuck v. Mayo 20 Clinic, 536 P.3d 289, 296 (Ariz. Ct. App. 2023), review granted in part (Sept. 10, 2024). 21 It is not clear that Arizona courts have dispensed with the “bodily harm” requirement in 22 relation to gross negligence claims, and the Court is not aware of any cases, nor does 23 Plaintiff cite any cases, where it has done so. See Jonovich as trustee of Daniel & Olive 24 Darlene Jonovich Tr. v. City of Globe, No. 2 CA-CV 2023-0136, 2023 WL 8086753, at *3 25 (Ariz. Ct. App. Nov. 21, 2023), review denied (May 7, 2024) (“[Plaintiffs] alleged only 26 monetary damages not bodily harm, and they have cited no authority that a gross 27 negligence claim can be maintained absent a risk of physical harm.”); Arimilli v. Rezendes, 28 No. CV-21-00345-PHX-GMS, 2022 WL 1664278, at *3 (D. Ariz. May 25, 2022) (“[T]he 1 Court is unaware of any cases supporting Plaintiff’s proposition that gross negligence 2 under Arizona law encompasses financial harm as well as bodily harm. Second, to the 3 extent Plaintiff argues her emotional distress should be considered bodily harm for the 4 purposes of a gross negligence claim, her argument is not well taken. Even though 5 emotional distress may cause bodily harm, emotional distress itself is not a form of bodily 6 harm under Arizona law.” (citation omitted)); Valles v. Pima Cnty., 776 F. Supp. 2d 995, 7 1005 (D. Ariz. 2011), aff’d sub nom. Valles v. Cnty. of Pima, 502 F. App’x 651 (9th Cir. 8 2012) (granting summary judgment on a gross negligence claim where “Plaintiffs have not 9 alleged an unreasonable risk of bodily harm or presented a triable issue of fact that the 10 County created such a risk.”). 11 None of the conduct alleged by Plaintiff in relation to the gross negligence claim— 12 directing Mother to file an intentionally false and misleading TDM Summary, deleting 13 Father’s address in the DCS system, and failing to send Father a notice of proposed 14 substantiation of child abuse—meets the “bodily harm” standard required to state a claim 15 for gross negligence under Arizona law. Nor does Plaintiff try to argue that his claim could 16 meet this standard. Instead, Plaintiff merely emphasizes the “gross and willful” conduct of 17 Defendants that “delayed resolution of the custody matter and kept Plaintiff unnecessarily 18 separated from his father for [an] additional 5 months.” (Doc. 9 at 8). Plaintiff’s Complaint 19 states only that he suffered “damages and emotional distress.” (Doc. 1-2 ¶ 108). Plaintiff’s 20 pleading does not establish that Defendants knew, or had reason to know, “facts that would 21 lead a reasonable person to recognize their conduct created an unreasonable risk of bodily 22 harm and involved a high probability of substantial harm.” Garibay, 565 P.3d at 246. And 23 having reviewed the detailed allegations set forth in the rest of Complaint, the Court does 24 not find that amendment could cure this defect. See Schreiber Distrib. Co. v. Serv-Well 25 Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986) (“If a complaint is dismissed for failure 26 to state a claim, leave to amend should be granted unless the court determines that the 27 allegation of other facts consistent with the challenged pleading could not possibly cure 28 1 the deficiency.”).4 2 Because Plaintiff has not, and cannot, allege facts showing that Defendants knew or 3 should have known their conduct created an unreasonable risk of bodily harm to Plaintiff, 4 Plaintiff’s gross negligence claim will be dismissed without leave to amend. 5 D. Intentional Infliction of Emotional Distress 6 Finally, Plaintiff asserts a claim for Intentional Infliction of Emotional Distress 7 (“IIED”) against the State of Arizona. (Doc. 1-2 ¶¶ 109–15). The elements of an IIED claim 8 under Arizona state law are: (1) “the conduct by the defendant must be ‘extreme’ and 9 ‘outrageous’, (2) “the defendant must either intend to cause emotional distress or recklessly 10 disregard the near certainty that such distress will result from his conduct,” and (3) “severe 11 emotional distress must indeed occur as a result of defendant’s conduct.” Ford v. Revlon, 12 Inc., 734 P.2d 580, 585 (Ariz. 1987). “Even if a defendant’s conduct is unjustifiable, it does 13 not necessarily rise to the level of ‘atrocious’ and ‘beyond all possible bounds of decency’ 14 that would cause an average member of the community to believe it was ‘outrageous.’” 15 Nelson v. Phx. Resort Corp., 888 P.2d 1375, 1386 (Ariz. Ct. App. 1994) (quoting Ford, 16 734 P.2d at 585). 17 Here, Plaintiff alleges that Reynolds and Passmore engaged in “extreme and 18 outrageous conduct,” and the State should be liable for their behavior under respondeat 19 superior. (Doc. 1-2 ¶¶ 110, 115). The outrageous conduct alleged includes, inter alia: (1) 20 excluding Father from the TDM and TDM Summary, (2) omitting Jenkins’ report and 21 22 4 Even if, for example, Plaintiff were to argue that Defendants’ conduct led to him remaining in his mother’s sole custody for 15 months where he “missed 50 days of school 23 and suffered other abuse and damages,” there is no reason to think Defendants knew or could have known that separating Plaintiff from his father would likely result in alleged 24 abuse or neglect from his mother. (Doc. 1-2 ¶ 1). Although the Family Court ultimately held that “unrestricted parenting time with Mother would harm Ayden’s mental, moral 25 and/or emotional health,” no such finding had been made or order entered at the time Defendants’ alleged misconduct occurred. (Id. ¶ 87). The only relevant orders mentioned 26 by Plaintiff that Defendants might have been aware of were previous “orders admonishing Mother for keeping Ayden out of school for extended periods having been cited for truancy 27 while in Mother’s custody.” (Id. ¶ 65). This is not sufficient to lead a reasonable person to believe that leaving Plaintiff in his mother’s custody created an unreasonable risk of bodily 28 harm, especially where her custody had never been revoked before. 1 finding that Plaintiff was “safe” and had no bruising, (2) making material 2 misrepresentations and omissions in the TDM Summary, and (3) failing to give Father 3 timely notice of substantiation by changing his address in the DCS system. (Id. ¶ 110). 4 While the Court agrees that, as pled, this conduct is unjustifiable, it does not meet 5 the high “extreme and outrageous” bar required to state an IIED claim. See Macias v. 6 Kaplan-Siekmann, No. CV-22-00280-PHX-SPL, 2024 WL 83448, at *6 (D. Ariz. Jan. 8, 7 2024) (citing cases); Watkins v. Arpaio, 367 P.3d 72, 75 (Ariz. Ct. App. 2016) (“Claimants 8 bear a heavy burden in establishing the type of extreme and outrageous conduct necessary 9 to sustain a claim for intentional infliction of emotional distress.”). And even if the conduct 10 could be considered extreme and outrageous, Plaintiff has not alleged, in a non-conclusory 11 manner, that he suffered the requisite level of “severe” emotional distress required to 12 establish the third element of an IIED claim. See Harding v. Sternsher, No. 1 CA-CV 16- 13 0127, 2017 WL 3138184, at *3 (Ariz. Ct. App. July 25, 2017), as amended on 14 reconsideration (Oct. 25, 2017) (“[C]rying, being stressed and upset, and having 15 occasional trouble sleeping is not enough to establish severe emotional distress. On the 16 other hand, anxiety that results in physical symptoms such as high blood pressure, a 17 nervous tic, chest pains, fatigue and dizziness may constitute severe emotional distress.” 18 (citations omitted)). 19 The Court further finds that allowing Plaintiff to amend this claim would be futile, 20 because although it is possible that he could plead additional facts showing severe 21 emotional distress, it remains that Reynolds and Passmore’s alleged conduct, though 22 unjustifiable, does not rise to the level of “extreme and outrageous” conduct required to 23 meet the first element of an IIED claim. Because this defect could not be cured by 24 amendment, the claim will be dismissed without leave to amend. 25 IV. CONCLUSION 26 Accordingly, 27 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 6) is granted in part 28 and denied in part. Plaintiff’s claims for Gross Negligence (Count II) and Intentional 1 | Infliction of Emotional Distress (Count III) against the State of Arizona are dismissed 2| without leave to amend. Because all claims against it have now been dismissed, the State of Arizona shall be dismissed as a party to this case. However, the Motion to Dismiss is 4| denied with respect to Plaintiff's claim for Judicial Deception in violation of 42 U.S.C. § 1983 against Defendants Reynolds and Passmore. 6 Dated this 24th day of June, 2025. 7 8 9 RGR 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28