Fountain v. Arizona, State of

Opinion

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

9 Brittney Fountain, No. CV-21-00356-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 State of Arizona, et al.,

13 Defendants. 14 15 At issue is the Motion to Dismiss Count Three of Plaintiff’s Complaint (Doc. 21, 16 Mot.) filed by Defendants Jeffrey Van Winkle, Charles Ryan, and David Shinn. The Court 17 has considered Plaintiff’s Response (Doc. 29, Resp.) and Defendants’ Reply (Doc. 30, 18 Rep.) and finds this matter appropriate for decision without oral argument. See LRCiv 19 7.2(f). Because Plaintiff cannot establish that Defendants intentionally discriminated 20 against her in violation of the Fourteenth Amendment prior to her reports of harassment 21 and assaults, Count Three of the Complaint is dismissed as to Ryan. The Court grants 22 Plaintiff leave to amend Count Three with respect to the post-reporting allegations against 23 Shinn and Van Winkle. 24 I. BACKGROUND 25 Plaintiff Brittney (Goodman) Fountain filed a Complaint alleging a 42 U.S.C. 26 § 1983 claim against Defendants Jeffrey Van Winkle, Charles Ryan, and David Shinn. 27 (Doc. 1, Compl. ¶¶ 97-107.) Plaintiff was employed by Arizona Department of Corrections 28 (“ADOC”) as a correctional officer at ASPC-Florence Central during the relevant period. 1 (Compl. ¶ 2.) Van Winkle served as the Warden at ASPC-Florence, Ryan was the 2 Department’s Director until September 2019, and Shinn became the Department’s Director 3 in October 2019. (Mot. at 3.) Defendant Jason McClelland was hired by ADOC in 4 approximately 2014 and worked as a correctional officer at the ASPC–Florence Central 5 Unit. (Compl. ¶ 15.) 6 Plaintiff’s claims arise out of two alleged instances of sexual assault committed by 7 McClelland against Plaintiff. (Compl. ¶¶ 33-45.) The first assault took place in January or 8 February 2019, and the second occurred in September 2019. (Compl. ¶ 35.) Plaintiff “did 9 not immediately report the assaults out of concern and fear of retaliation.” (Compl. ¶ 46.) 10 Plaintiff alleges that “[b]ecause Defendant McClelland was so favored and well-liked 11 among the prison staff, Plaintiff was concerned that others would not believe her or would 12 retaliate against her if she reported the incidents.” (Compl. ¶ 46.) After the assaults 13 occurred, Plaintiff alleges that McClelland and other staff members “created a hostile work 14 environment where Plaintiff was subjected to egregious and humiliating harassment for 15 months.” (Compl. ¶¶ 47-60.) This included verbal harassment by other staff members and 16 alleged rumors regarding Plaintiff’s reputation. (Compl. ¶¶ 47-60.) Plaintiff did not report 17 past abuse or ongoing harassment out of continued fear of retaliation. (Compl. ¶ 52.) 18 Plaintiff further alleges that ADOC maintained an “informal resolution” policy, 19 which “allowed supervisors to dispose of paperwork or complaints written about them or 20 alter the documents to benefit themselves.” (Compl. ¶ 53.) According to Plaintiff, this was 21 the process utilized when harassment was reported. (Compl. ¶ 53.) This process “allowed 22 supervisors to manipulate the outcome to their liking and consider the matter resolved 23 while not documenting (or inaccurately documenting) the matter to claim probable 24 deniability later.” (Compl. ¶ 53.) Plaintiff states that “it was well known among prison 25 staff, including other sergeants and supervisory personnel, that Defendant McClelland was 26 overly flirtatious and inappropriate in the workplace and that he had sexual relationships 27 with several staff members over the years,” and that “it was also well known among staff 28 that Defendant McClelland would prey on young female staff members who he perceived 1 to be vulnerable and easy to coerce and that he would not accept ‘no’ for an answer.” 2 (Compl. ¶¶ 26-27.) According to Plaintiff, the “‘boys will be boys’ culture that existed 3 within the prison allowed his sexual proclivities to go unchecked.” (Compl. ¶ 29.) 4 On July 15, 2020, ADOC’s Criminal Investigations Unit (“CIU”) began 5 investigating McClelland in connection with an assault reported by another prison 6 employee. (Compl. ¶ 61.) Plaintiff reported her assaults and harassment at that time. 7 (Compl. ¶ 62.) Plaintiff allegedly continued to experience an “unsafe and hostile work 8 environment” after reporting the abuse. (Compl. ¶ 66.) McClelland was arrested on 9 August 6, 2020, and “the prison staff’s harassment of Plaintiff began to escalate” at that 10 time. (Compl. ¶¶ 70-71.) 11 Plaintiff alleges that “people began to post news articles about the arrest to 12 Plaintiff’s social media page.” (Compl. ¶ 72.) Van Winkle allegedly contacted Plaintiff’s 13 investigator in response to these social media posts and informed the investigator that “he 14 had people watching her social media,” threatening “to bring Plaintiff to his office and 15 reprimand her if she did not stay off social media.” (Compl. ¶ 73.) At the time, Van Winkle 16 “had immediate supervisory authority over Plaintiff.” (Compl. ¶ 75.) 17 II. LEGAL STANDARD 18 When analyzing a complaint for failure to state a claim for relief under Federal Rule 19 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and 20 construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 21 1063, 1067 (9th Cir. 2009). Legal conclusions couched as factual allegations are not 22 entitled to the assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and 23 therefore are insufficient to defeat a motion to dismiss for failure to state a claim. In re 24 Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). 25 A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) 26 the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal 27 claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a 28 complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a 1 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 2 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 3 will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). The 4 complaint must thus contain “sufficient factual matter, accepted as true, to ‘state a claim to 5 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 6 Twombly, 550 U.S. at 570). “[A] well-pleaded complaint may proceed even if it strikes a 7 savvy judge that actual proof of those facts is improbable, and that ‘recovery is very remote 8 and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 9 (1974)). 10 III. ANALYSIS 11 A. Legal Standard – § 1983 Equal Protection Claim 12 Section 1983 grants every person a right of action for “the deprivation of any rights, 13 privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. 14 However, § 1983 is “not itself a source of substantive rights.” Sampson v. Cnty. of Los 15 Angeles by and through Los Angeles Cnty., 974 F.3d 1012 (9th Cir. 2012). To state a § 1983 16 claim, Plaintiff “must allege the violation of a right secured by the Constitution and laws 17 of the United States,” committed by “a person acting under color of state law.” West v. 18 Atkins, 487 U.S. 42, 48 (1988). 19 To state a § 1983 claim alleging violation of the Equal Protection Clause of the 20 Fourteenth Amendment, Plaintiff “must show that the defendants acted with an intent or 21 purpose to discriminate” against her based upon her inclusion in a protected class. Barren 22 v. Harrington, 152 F.3d 1193, 1194 (1998). Finding intentional discrimination “requires 23 more than ‘intent as volition or intent as awareness of consequences.’” Iqbal, 556 U.S. at 24 676 (quoting Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)). 25 A government employee alleged to have committed a § 1983 violation is protected 26 from liability by qualified immunity unless their conduct “violate[s] clearly established 27 statutory or constitutional rights of which a reasonable person would have known.” Harlow 28 v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether qualified immunity 1 applies, the court looks at (1) whether Plaintiff has sufficiently pled a violation of a 2 constitutional right, and (2) “whether the right at issue was ‘clearly established’ at the time 3 of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) 4 (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). 5 B. Plaintiff has not sufficiently pled a constitutional violation 6 1. Plaintiff cannot show intentional discrimination prior to reporting the harassment and assaults 7 8 Plaintiff’s allegations that Defendants facilitated the ongoing existence of practices 9 or policies that were generally discriminatory fall under a municipal theory of liability 10 established in Monell v. Department of Social Services of City of New York, 436 U.S. 658, 11 690 (1978). The Court in Monell stated that: 12 Local governing bodies [] can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, 13 the action that is alleged to be unconstitutional implements or 14 executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers. 15 Moreover. . . local governments . . . may be sued for 16 constitutional deprivations visited pursuant to governmental “custom” even though such a custom has not received formal 17 approval through the body’s official decisionmaking channels. 18 Id. at 690-91. Liability under § 1983 may not stem from a respondeat superior theory of 19 liability but must arise out of municipal policies that caused the constitutional violation. Id. 20 at 691. 21 Plaintiff explicitly rejects the characterization that her claims fall under a theory of 22 municipal liability, instead alleging her claims fall under a ratification theory. (Resp. at 2.) 23 A ratification theory of liability requires finding 24 evidence of a conscious, affirmative choice . . . where “a 25 deliberate choice to follow a course of action is made from among various alternatives by the official or officials 26 responsible for establishing final policy with respect to the subject matter in question.” 27 28 1 Gillette v. Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992) (quoting Pembaur v. City of 2 Cincinnati, 475 U.S. 469, 483-84 (1986)). Although “acquiescence in a subordinate’s 3 constitutional violation” may result in liability for their supervisor, this requires “a 4 sufficient causal connection” between the violation and the supervisor’s conduct. Hunt v. 5 Davis, 749 Fed. App’x 522, 524 (9th Cir. 2018) (quoting Starr v. Baca, 652 F.3d 1202, 6 1207 (9th Cir. 2011)). A supervisor must participate in, direct, or know of the violations 7 and fail to prevent them to be held liable under Plaintiff’s ratification theory of liability. 8 Hunt, 749 Fed. App’x at 524 (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). 9 Defendants are correct that the Supreme Court has explicitly rejected this theory of 10 liability. In Iqbal, the respondent alleged a constitutional violation under a theory of 11 “supervisory liability,” in which the petitioners could “be held liable for ‘knowledge and 12 acquiescence in their subordinates’ use’” of discriminatory practices and policies in the 13 execution of their official duties. Iqbal, 556 U.S. at 677. The Court rejected this argument, 14 finding that “a supervisor’s mere knowledge of his subordinate’s discriminatory purpose” 15 could not support a claim of the supervisor’s own constitutional violation. Id. Government 16 officials are only liable for their own individual acts of misconduct, requiring a finding of 17 purpose to discriminate to find liability under § 1983. Id. 18 Plaintiff argues that “discriminatory intent on the basis of sex may be inferred from 19 allegations that supervisors were aware of sexual harassment and failed to address it.”1 20 (Resp. at 6 (citing T.E. v. Grindle, 599 F.3d 583, 588-89 (7th Cir. 2010)).) Crucially, the 21 Ninth Circuit cases to which Plaintiff cites all involve instances in which the plaintiffs had 22 reported the alleged sexual harassment to their supervisors, and the supervisors had failed 23 to redress the abuse. (See Resp. at 6-8.) Here, Plaintiff concedes that she did not report the 24 assaults or harassment to her supervisors until July 2020. (Compl. at 8.) Plaintiff has failed 25 to cite any controlling case law indicating that she can demonstrate intentional 26 discrimination in violation of the Fourteenth Amendment prior to reporting the assaults 27 and harassment to her supervisors. 28 1 Plaintiff cites to several out-of-circuit cases for this proposition. (See Resp. at 6.) 1 Because Plaintiff is unable to prove intentional discrimination by the supervisory 2 Defendants prior to reporting the harassment and assaults, the Court must dismiss 3 Plaintiff’s claim against Ryan. He retired from his position as Department Director in 4 September 2019, approximately ten months prior to Plaintiff reporting the assaults and 5 harassment. 6 2. Plaintiff’s post-reporting claims are generally not cognizable under the Fourteenth Amendment 7 8 To the extent that Plaintiff presents factual allegations of post-reporting retaliation 9 by Van Winkle, Plaintiff’s claims are not contemplated by the Equal Protection Clause of 10 the Fourteenth Amendment. Plaintiff’s allegations with respect to social media and her 11 inability to discuss the ongoing investigation against McClelland come under the First 12 Amendment’s constitutional protections against retaliation and silencing. The Ninth 13 Circuit recently stated (without deciding) that whether a retaliation claim could be brought 14 under the Fourteenth Amendment is a “close question.” Ballou v. McElvain, 2021 WL 15 4436213, at *10 (9th Cir. Sept. 28, 2021). Retaliation is cognizable under the First 16 Amendment. Id. But Plaintiff has not claimed a First Amendment violation in the 17 Complaint. Even if the Court were to find that Plaintiff’s retaliation claim could be stated 18 under the Fourteenth Amendment, it would not suffice to be a “clearly established” right, 19 and Van Winkle would be protected by qualified immunity. Thus, insofar as Plaintiff 20 alleges a retaliation or silencing claim under the Fourteenth Amendment, her claim against 21 Van Winkle is dismissed. 22 Plaintiff has otherwise failed to sufficiently state post-reporting claims of intentional 23 discrimination against Van Winkle and Shinn. However, Plaintiff has alleged that “[a]fter 24 the arrest, the prison staff’s harassment of Plaintiff began to escalate.” (Comp. ¶ 70.) While 25 this allegation is not sufficient to state a claim by itself, Plaintiff could plausibly include 26 sufficient factual allegations to state a post-reporting claim. The Court will thus grant 27 Plaintiff leave to amend with respect to Van Winkle and Shinn to, if possible, allege any 28 intentional discrimination by them that took place after she reported the assaults and 1 harassment. See Lopez v. Smith, 203 F.3d 1122, 1127-30 (9th Cir. 2000) (holding that if a 2 defective complaint can be cured, the plaintiff is entitled to amend before the court 3 dismisses the claim). 4 C. Even if Plaintiff alleged a constitutional violation, it is not clearly established 5 6 Even if the Court accepted Plaintiff’s pre-reporting ratification theory of a 7 constitutional violation, Defendants are entitled to qualified immunity because Plaintiff has 8 not shown they violated a clearly established constitutional right. A constitutional right 9 “must be sufficiently clear that every reasonable official would have understood that what 10 he is doing violates that right.” Taylor v. Barkes, 575 U.S. 822, 825 (2015) (quoting Reichle 11 v. Howards, 566 U.S. 658, 664 (2012)). This requires determining whether a government 12 official had fair notice that their conduct would violate a constitutional right. Hope v. 13 Pelzer, 536 U.S. 730, 741 (2002). While this does not “require a case directly on point,” 14 the right must be clearly established such that the question is beyond debate. Ashcroft v. 15 al-Kidd, 563 U.S. 731, 741 (2011). 16 Because there is no controlling case law supporting Plaintiff’s pre-reporting 17 ratification theory of liability, Plaintiff cannot show that a reasonable official in 18 Defendants’ positions would have been on notice that their conduct was unconstitutional. 19 Thus, Plaintiff cannot demonstrate that a clearly established constitutional right was 20 violated prior to reporting the assaults and harassment. 21 D. Conclusions 22 Plaintiff has failed to state a claim against Ryan, and the Court will thus dismiss 23 Count Three with respect to Ryan. The Court grants Plaintiff leave to amend Count Three 24 with respect to Shinn and Van Winkle, but only to the extent Plaintiff can make non- 25 conclusory factual allegations of intentional discrimination supporting her claim of an 26 Equal Protection violation after her reports of harassment and assaults. 27 28 1 IT IS THEREFORE ORDERED granting in part Defendants’ Motion to Dismiss 2 || Count Three of Plaintiff's Complaint (Doc. 21). Plaintiff's claim against Defendant Charles 3 || Ryan is dismissed. 4 IT IS FURTHER ORDERED granting Plaintiff leave to amend Count Three against 5 || Defendants Jeffrey Van Winkle and David Shinn, but only as specified in this Order. Any 6 || Amended Complaint must be filed within 14 days of the date of this Order. 7 Dated this 27th day of October, 2021. CN

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