Hetzel v. Pinal, County of

• Court: District Court, D. Arizona
• Decided: March 5, 2025
• Docket: 2:23-cv-00218
• Status: Unknown

Opinion

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

9 Frank Hetzel, et al., No. CV-23-00218-PHX-ROS

10 Plaintiffs, ORDER

11 v.

12 County of Pinal, et al.,

13 Defendants. 14 15 This dispute arises out of Defendants’ alleged unconstitutional acts and gross 16 negligence in connection with the burning of Plaintiffs’ home, located on unincorporated 17 land in Pinal County, in the wee hours of April 19, 2022. Frank and Marilesa Hetzel, a 18 married couple, and Michael Coulston, their neighbor (collectively “Plaintiffs”), filed suit 19 for monetary relief against Pinal County (“County”), the Pinal County Board of 20 Supervisors (“PCBOS”), the Pinal County Attorney’s Office (“PCAO”), Pinal County 21 Attorney Kent Volkmer (“CA Volkmer”), the Pinal County Sheriff’s Office (“PCSO”), 22 Pinal County Sheriff Mark Lamb (“Sheriff Lamb”), unknown Pinal County 911 dispatch 23 employees, and unknown PCSO deputies (collectively “Defendants”). Defendants filed a 24 motion for summary judgment on all claims. (Doc. 62, “Mot.”). Plaintiffs responded 25 (Doc. 65, “Resp.”), and Defendants replied (Doc. 70, “Reply”). For the reasons set forth 26 below, the Court will grant summary judgment on all grounds. 27 BACKGROUND 28 All facts set forth below are undisputed or not subject to reasonable dispute based 1 on the parties’ proffered evidence unless otherwise noted. Both Plaintiffs and Defendants 2 filed separate statements of fact in support of their positions. (See Doc. 63, “DSOF”; Doc. 3 66, “PSOF”).1 4 Pinal County is roughly the size of Connecticut. As such, several fire departments 5 operate within it. However, fire protection is not readily available in unincorporated areas 6 of the County, including parts of an area known as Cactus Forest in South Florence. The 7 lack of fire protection is a known fact among homeowners in the unincorporated areas, as 8 new residents sign home insurance documents acknowledging a lack of fire protection. 9 The only entity that will respond to fires in the County’s unincorporated areas is the 10 Arizona Department of Fire and Forestry, which generally responds in 24 hours—well after 11 significant ruin has occurred. 12 In 2020, after moving to the Cactus Forest area, non-party Larry Vincent learned 13 that there was no fire service to the area. After reaching out to the Town of Florence Fire 14 Department, Vincent connected with a local realtor who managed a 182-person text group 15 of local neighbors who would “bring buckets, shovels and water wagons and attempt to do 16 whatever possible” whenever there was a fire emergency. Vincent subsequently formed a 17 volunteer nonprofit firefighting group called the South Florence Volunteer Fire 18 Department (“SFVFD”). SFVFD initially comprised of four firefighters, including 19 Vincent. Vincent purchased a used fire engine—despite neither he nor any of the other 20 volunteer firefighters having ever operated one before—along with a dozen mismatched 21 pieces of uniform. The group received six hours of training on the use of the engine from 22 the fire department that sold it to Vincent, and over time, the group learned more from 23 various entities that assisted them. Vincent later acquired two additional vehicles and some 24 additional equipment. Although the group size fluctuated, the core SFVFD firefighting 25 group eventually grew to approximately ten people.

26 1 Of significance, Plaintiffs fail to address Defendants’ factual statements in the PSOF. This contravenes Fed. R. Civ. P. 56(c) and LRCiv. 56.1(b), which requires non-movants to 27 address, paragraph by paragraph, each paragraph of the of the moving parties’ separate statement of facts. Fed. R. Civ. P. 56(e)(2) permits courts to consider unaddressed facts as 28 undisputed for purposes of the motion. The Court will thus deem unaddressed facts as undisputed unless indicated otherwise by contrary statements in the PSOF. 1 In February 2021, after SFVFD responded to a fire it learned about via text, Vincent 2 and another SFVFD volunteer met with PCSO 911 Administrative Manager Robert 3 Woodhull and other PCSO employees to discuss SFVFD’s firefighting activities. During 4 that meeting, SFVFD was informed of the possibility of accessing the regional radio 5 channels. On February 16, 2021, Sheriff Lamb on behalf of the Pinal Regional 6 Communications Consortium (“PRCC”), signed a Letter of Concurrence (“LOC”) with 7 SFVFD. PRCC is an interagency entity which maintains the public safety communications 8 system. It decides whether a group can have access to confidential police communications 9 that transmit on the County’s radio system. The LOC set forth that SFVFD was allowed 10 “to have PRCC radio channels/talkgroups programmed on their radios for the use of 11 permitted interagency radio communications.” SFVFD agreed to “[o]nly operate 12 (transmit) when authorized to do, or per agreed upon operational procedures.” PRCC and 13 SFVFD mutually agreed that LOC could be canceled by either party at any time, upon 30 14 days’ written notice to the other party. 15 Separate from the LOC, Woodhull advised PCSO dispatchers to contact SFVFD 16 when fires occurred in its area, and an internal notification system was created outlining 17 the role PCSO dispatch would have in notifying SFVFD of fires in the area south of 18 Florence. PCSO’s internal procedures stated that 911 dispatchers “may call SFVFD” when 19 fires occurred in the area south of Florence, but did not mandate that SFVFD be called. 20 Regardless of whether courtesy calls were made to SFVFD, the procedure required 21 dispatchers to search for other fire departments in the area to notify the departments of a 22 fire. According to Vincent, SFVFD did not interpret the LOC or any other document to 23 imply that PCSO was required to notify it of fires in the area. And County employees, 24 including Woodhull and Sheriff Lamb, did not independently promise to permanently 25 provide SFVFD with courtesy calls or provide 30-days’ notice before rescinding the non- 26 binding decision to provide such calls. 27 Per the terms of the internal procedure, SFVFD did receive courtesy calls reporting 28 of fires occurring in the area. From February 2021 to January 2022, SFVFD responded to 1 four calls from PCSO dispatch. In late 2021, Lt. Ross Teeple of PCSO became aware of 2 concerns relating to SFVFD. He was informed of two reports involving SFVFD that 3 prompted him to seek clarification of SFVFD’s status. The first involved an individual 4 who allegedly self-identified as an SFVFD member, and trespassed on a citizen’s property, 5 asking to see the citizen’s burn permit. The second involved a complaint about SFVFD 6 volunteers parking their vehicles on a citizen’s landscaping while responding to a fire at 7 the citizen’s neighbor’s house. Lt. Teeple questioned whether SFVFD constituted a fire 8 department and had authority to go onto someone’s property to fight a fire. 9 On February 3, 2022, concerned about individual property rights and the legality of 10 SFVFD’s conduct, Lt. Teeple wrote to Deputy County Attorney (“DCA”) Jim Heard, the 11 law enforcement liaison, to get clarification. In his email, noting SFVFD was not a fire 12 district or a government entity, Lt. Teeple described the two incidents and sought direction 13 since he had been unable to locate any Arizona statute which protected an individual who 14 was trespassing on another’s property simply because they self-identified as a firefighter. 15 Lt. Teeple learned SFVFD did not have an Intergovernmental Agreement (“IGA”) with the 16 County to allow SFVFD to receive service notifications. The only relevant documents in 17 existence were: (1) the LOC—which authorized SFVFD to use the public safety radio 18 frequencies but did not mandate that PCSO dispatch or notify SFVFD of any fire; and (2) 19 PCSO’s in-house notification procedures. Notably, every other entity that received calls 20 from 911 dispatch had a Memorandum of Agreement (“MOU”) or IGA with the County, 21 which SFVFD conspicuously lacked. 22 After DCA Heard learned, inter alia, that SFVFD did not have a letter of Agreement 23 with the State Fire Marshall or State Department of Forestry and Fire Management to 24 provide fire services; was not affiliated with the Town of Florence Fire Department; was 25 operating as a private company; likely lacked formal firefighting training; and had no fire 26 protection authority outside the boundaries of its own property, he concluded SFVFD did 27 not appear to “have any authority to make anybody do anything.” Based on liability 28 concerns, the reported complaints, and the belief that SFVFD did not have necessary 1 training and lacked any certification, the recommendation was made by PCAO to stop 2 notifying SFVFD of fires through dispatch. Sheriff Lamb then “made a decision to 3 terminate the courtesy calls” to SFVFD based on legal counsel’s advice and the available 4 information, including (1) his belief that fire personnel would undergo some level of 5 training and certification, (2) liability concerns, (3) his belief that SFVFD did not have a 6 state identification number with the Arizona State Fire Marshall, which only enabled 7 SFVFD to submit reports and register with FEMA and the National Fire Association. 8 On February 16, 2022, PCSO dispatch was informed that although the LOC 9 remained in place, such that SFVFD would continue “to have radio channels/talkgroups 10 programed on their radios,” dispatch would no longer provide SFVFD with courtesy calls 11 notifying it of any fires in its coverage area. Accordingly, dispatch stopped providing 12 SFVFD with courtesy calls, but SFVFD continued to have access to the radios, pursuant to 13 the LOC, which remained effective. Lt. Teeple attempted to meet with Vincent to inform 14 him of the decision to discontinue courtesy calls, but was unable to do so. Lt. Teeple did, 15 however, tell Vincent “there was a letter coming from the county and they were no longer 16 supporting [SFVFD] with calls.” In subsequent conversations with DCA Jim Frisk and 17 PCSO Chief Deputy Thomas preceding the fire at issue, Vincent learned of PCSO’s 18 concerns regarding SFVFD and learned that “the decision had been made to no longer 19 contact [SFVFD] via 911.” 20 In 2019, Marilesa Hetzel purchased property in Cactus Forest. The Hetzels allowed 21 Michael Coulston to set up a marijuana greenhouse on their property. Coulston stayed in 22 a motor home on the property and paid the Hetzels a monthly sum, along with a portion of 23 the proceeds of his marijuana sales. In April 2022, after they failed to pay their electric 24 bill, the Hetzels’ electricity service was terminated. The Hetzels began using flashlights 25 and candles to heat and light their home. The Hetzels, who could not purchase 26 homeowners’ insurance or fire insurance for the property, were aware they needed to be 27 careful when using candles and other light sources in the property. 28 At about six o’clock on the evening of April 18, 2022, Frank lit a candle for Marilesa 1 as she was going to sleep. Leaving the candle on a bedside table near a curtained window, 2 Frank went outside to work on something. At approximately 11:30 p.m., Frank heard 3 Marilesa screaming for him from inside the house, and discovered that the house was on 4 fire. When Frank ran into the bedroom, the curtains and entire front wall were on fire. 5 Unable to extinguish the fire with water, due to the lack of water pressure and electricity, 6 Frank attempted to extinguish the fire with Coulston’s fire extinguisher, but was unable to 7 do so. At 12:52 a.m., Coulston called 911 to report the fire. The call was made more than 8 six hours after Ms. Hetzel went to bed, and 43 minutes after Frank learned of the fire. 9 Approximately twenty minutes after the call came through, a Florence police officer and 10 PCSO deputies arrived at the scene in response to the call. By that point, half the house 11 was on fire. Less than a minute later and a mere 14 minutes after the fire was first reported, 12 fire was coming out of the house, which was fully engulfed by the flames. 13 Although PCSO contacted several fire departments to see if they would respond to 14 the scene, all the departments declined. Aware of the risks presented by ammunition going 15 off inside the house, and a large propane tank located a mere 20 feet from the house, PCSO 16 officers worked to evacuate the premises and help get animals off the property. At 2:45 17 a.m., more than an hour after the fire was reported, the Hetzels’ neighbors, arrived with 18 700 gallons of water to help put out the fire. Within minutes, after confirming the Hetzels’ 19 consent to allow the neighbors onto their property, the deputies allowed the truck to enter 20 the premises. The neighbors unsuccessfully attempted to put out the fire in the property’s 21 shop area, as the fire had already engulfed the home. By 4:21 a.m., the fire had died down. 22 Neither of the Hetzels were aware of or heard of SFVFD prior to the night of the fire. 23 Plaintiffs brought suit against the County and its officials claiming constitutional violations 24 and gross negligence with respect to Defendants’ decision to terminate courtesy calls to 25 SFVFD, which caused their home to be destroyed by fire. 26 LEGAL STANDARD 27 Summary judgment is granted if the pleadings and supporting documents, viewed 28 in the light most favorable to the nonmoving party, “show that there is no genuine issue as 1 to any material fact and that the moving party is entitled to judgment as a matter of law.” 2 Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The 3 moving party bears the initial responsibility of presenting the basis for its motion and 4 identifying those portions of the record that it believes demonstrates the absence of a 5 genuine issue of material fact. Celotex, 477 U.S. at 323. The non-moving party must then 6 point to specific facts establishing there is a genuine issue of material fact for trial. Id. 7 At summary judgment, the Court considers only admissible evidence. See Fed. R. 8 Civ. P. 56(c)(1)(B). When considering a motion for summary judgment, a court should 9 not weigh the evidence or assess credibility; instead, “the evidence of the non-movant is to 10 be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty 11 Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists “if the 12 [admissible] evidence is such that a reasonable jury could return a verdict for the non- 13 moving party.” Id. at 248. In ruling on the motion for summary judgment, the Court will 14 construe the evidence in the light most favorable to the non-moving party. Barlow v. 15 Ground, 943 F.2d 1132, 1135 (9th Cir. 1991). 16 ANALYSIS 17 Defendants move for summary judgment on all five of Plaintiff’s claims. For the 18 reasons that follow, the Court grants summary judgment on all counts. 19 I. Non-Jural Entities 20 Defendants assert the Sheriff’s Office and the County Attorney’s Office are non- 21 jural entities and thus lack the capacity to be sued. Plaintiffs did not dispute this assertion, 22 likely because it is evidently correct. 23 “[A] governmental entity may be sued only if the legislature has so provided” 24 because it has “no inherent power and possess[es] only those powers and duties delegated 25 to them by their enabling statutes.” Braillard v. Maricopa Cnty., 232 P.3d 1263, 1269 26 (Ariz. Ct. App. 2010); see also McKee v. State, 388 P.3d 14, 21 (Ariz. Ct. App. 2016); 27 Kelly v. Pima Cnty. Justice Court, 2010 WL 2605804, *2 (D. Ariz. Apr. 23, 2010). 28 Although the legislature has established a county’s capacity to sue or be sued, it has not 1 given specific statutory authorization for a sheriff’s office or county attorney’s office to be 2 sued. A.R.S. § 11-201(A)(1). Thus, PCSO is a non-jural entity and as such, it cannot be 3 sued in its own name. See Braillard, 232 P.3d at 1269 (dismissing claims against Maricopa 4 County Sheriff’s Office as a non-jural entity); United States v. Maricopa Cnty., Ariz., 915 5 F. Supp. 2d 1073, 1077 (D. Ariz. 2012) (dismissing Maricopa County Sheriff’s Office from 6 case because it was a non-jural entity); Kelly, 2010 WL 2605804, at *2 (“[A] county 7 attorney’s office is not a government entity which can be sued under § 1983”). Since PCSO 8 and PCAO are non-jural entities, they are improper party defendants. Summary judgment 9 is warranted on Plaintiffs’ claims against PSCO and PCAO. 10 II. Vicarious Liability 11 Defendants argue the County and PCBOS are improper defendants in this action 12 because they cannot be vicariously liable for actions undertaken by Sheriff Lamb and CA 13 Volkmer in furtherance of their statutory duties, according to Fridena v. Maricopa County, 14 504 P.2d 58 (Ariz. Ct. App. 1972). Plaintiffs failed to respond. The Court agrees with 15 Defendants. 16 The Arizona Court of Appeals in Fridena held that where a county has “no right of 17 control over the Sheriff or his deputies” it is “not liable under the doctrine of Respondeat 18 superior for the Sheriff’s torts.” Fridena, 504 P.2d at 61. “Generally, counties are not 19 vicariously liable for the acts of elected officials whose duties are imposed by statute or 20 the Arizona constitution.” Loredo v. Maricopa Cnty., 2023 WL 2181126, at *pp 6 (Ariz. 21 Ct. App. Feb. 23, 2023) (holding county cannot be vicariously liable for the tortious 22 conduct of an elected sheriff’s deputies taking on duties imposed by law). Similarly, the 23 Arizona Court of Appeals recently held that Ariz. Rev. Stat. § 11-251(1), which grants a 24 county board of supervisors the authority to “supervise the official conduct of all county 25 officers,” is not a grant of plenary power, but rather applies only to the limited context of 26 supervising the fiscal activities of those county officers who are “charged with assessing, 27 collecting, safekeeping, managing or disbursing the public revenues.” Sanchez v. 28 Maricopa Cnty., 541 P.3d 566, 569 (Ariz. Ct. App. 2023). 1 Defendants contend that under Ariz. Rev. Stat. § 11-441, the sheriff, and by 2 extension his deputies, has statutory duties to “preserve the peace,” and prevent and 3 suppress all breaches of the peace. Ariz. Rev. Stat. § 11-441(A)(1), (3); § 38-462(A). They 4 argue Sheriff Lamb’s decision to terminate courtesy calls to a volunteer firefighting group 5 that citizens had complained about was undertaken in furtherance of these statutory duties. 6 The Court agrees that neither the County nor PCBOS had any legal right of control over 7 Sheriff Lamb’s actions or the actions of any unnamed deputies or dispatchers. See Loredo, 8 2023 WL 2181126; Fridena, 504 P.2d at 60-62; see also Gabaldon v. Cnty. of Maricopa, 9 2022 WL 306974, at *3 (D. Ariz. Feb. 2, 2022) (“Several federal courts in this district have 10 found Fridena bars [Arizona] state-law claims against the County based on respondeat 11 superior for torts allegedly committed by the employees of the Sheriff’s Office . . . . This 12 Court will follow suit.”); Norton v. Arpaio, 2015 WL 13759956, at *6 (D. Ariz. Nov. 20, 13 2015) (holding under Fridena all state-law claims against Maricopa County are dismissed); 14 Kloberdanz v. Arpaio, 2014 WL 309078, at *5 (D. Ariz. Jan. 28, 2014) (same); Nevels v. 15 Maricopa Cty., 2012 WL 1623217, at *4 (D. Ariz. May 9, 2012) (same). 16 Likewise, Defendants contend the county attorney is also an elected official with 17 duties imposed by the legislature. See Ariz. Rev. Stat. § 11-532. The county attorney, and 18 by extension his deputies, has a statutory duty to, “[w]hen required, give a written opinion 19 to county officers on matters relating to the duties of their offices.” Ariz. Rev. Stat. § 11- 20 532(A)(7). That is precisely what occurred here. A lieutenant within PCSO engaging in 21 his statutory duties sought an opinion from CA Volkmer related to the authorization of 22 terminating courtesy calls to SFVFD in light of citizen complaints and a lack of a formal 23 agreement with the County. Again, neither the County nor PCBOS had any right of control 24 over CA Volkmer or his deputies in their provision of a written opinion addressing the 25 provision of courtesy calls to SFVFD. As a result, the County and PCBOS cannot be held 26 vicariously liable for the actions of CA Volkmer or his deputies. Accordingly, under 27 Fridena, summary judgment is proper in favor of both the County and PCBOS. 28 / / / 1 III. Notice of Claim 2 Defendants assert Plaintiffs failed to serve notices of claim on CA Volkmer, Sheriff 3 Lamb, the unnamed PCSO deputies, and the 911 dispatchers. While a genuine dispute 4 remains regarding the propriety of service on CA Volkmer and Sheriff Lamb, it is 5 undisputed that Plaintiffs failed to serve notices of claim on any PCSO deputies or 911 6 dispatchers. 7 Arizona law requires claimants to serve a notice of claim on a public entity or public 8 employee before any state law claims can be brought against them. Ariz. Rev. Stat. § 12- 9 821.01. The notice of claim statute, however, does not apply to § 1983 claims. Morgan v. 10 City of Phoenix, 785 P.2d 101, 104 (Ariz. Ct. App. 1989). Under Arizona law, strict 11 compliance with § 12-821.01 is mandatory and essential. Falcon ex rel. Sandoval v. 12 Maricopa Cnty., 213 Ariz. 525, 144 P.3d 1254, 1256 (Ariz. Ct. App. 2006) (“Actual notice 13 and substantial compliance do not excuse failure to comply with the statutory requirements 14 of ... § 12-821.01(A).”). An assertion that the plaintiff has not complied with the notice- 15 of-claim statute is an affirmative defense. Lee v. State, 242 P.3d 175, 178 (Ariz. Ct. App. 16 2010). The defendant thus bears the burden of proving that the plaintiff failed to comply. 17 See Pfeil v. Smith, 900 P.2d 12, 14 (Ariz. Ct. App. 1995) (“[i]n a civil action ... the 18 defendant has the burden of proving an affirmative defense”). 19 CA Volkmer and Sheriff Lamb argue Plaintiffs failed to serve notices of claim on 20 them because they aver Julie Clark, the Assistant to the Clerk of the PCBOS, who accepted 21 service on September 9, 2022 was not authorized to accept service of process on either of 22 their behalf. (DSOF, Exs. W, X ¶¶ 5-6). However, the proofs of service offered by 23 Plaintiffs indicate that on September 12, 2022, Chris Keller, a deputy county attorney at 24 PCAO accepted service of the notice of claim. (PSOF, Ex. 76 at 2). Also on that day, Lisa 25 Navarrette, an administrative specialist at the PCSO accepted service of a notice of claim. 26 (Id. at 3). Whether those two individuals were authorized to accept service on behalf of 27 CA Volkmer and Sheriff Lamb, respectively, is subject to genuine dispute. However, 28 because Plaintiffs failed to present evidence that any 911 dispatchers or PCSO deputies 1 were served with a notice of claim, summary judgment on the gross negligence claims as 2 to both categories of unnamed defendants is warranted. 3 IV. Section 1983 Fourteenth Amendment Claims 4 In their Complaint, Plaintiffs assert claims under 42 U.S.C. § 1983 pursuant to 5 Defendants’ alleged violations of the “Equal Protection Clause of the Fourteenth 6 Amendment and Title VI of the Civil Rights Act of 1964.” (Compl. at 2; see ¶¶ 67-68). 7 Plaintiffs failed to plead allegations to support a Title VI claim, and the parties failed to 8 address this claim on summary judgment. While Plaintiffs have forfeited this claim at 9 summary judgment, the Court will exercise discretion and analyze the claim on its merits, 10 but the Court finds that it is without merit. 11 And Plaintiffs attempted to introduce a new theory of liability on summary 12 judgment based on the Fourteenth Amendment Due Process Clause. (Resp. at 4-11). 13 Nowhere in the Complaint do Plaintiffs allege Due Process claims. It is axiomatic that 14 Plaintiffs cannot obtain relief on claims not pled in the Complaint. See Fed. R. Civ. P. 15 8(a)(2); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292-93 (9th Cir. 2000) (“After 16 having focused on [one theory] in their complaint and during discovery, the [plaintiff] 17 cannot turn around and surprise the [defendant] at the summary judgment stage on the 18 theory that an allegation of [one theory of relief] is sufficient to encompass a[nother] theory 19 of liability.”); Summers v. Univ. of Nevada Las Vegas, a Div. of Univ. of Nevada Sys., 97 20 F.3d 1461 n.2 (9th Cir. 1996) (distinguishing between due process and equal protection 21 claims, and affirming summary judgment on due process claims where the complaint “did 22 not contain a due-process claim” and instead alleged “violations of the Fourteenth 23 Amendment based on the Equal Protection Clause”). However, notwithstanding the 24 impropriety of this claim, the Court will consider its merits, but again the Court finds it 25 fails. Because of Plaintiffs’ failure to establish a constitutional violation, their Monell 26 claim cannot stand. 27 A. Equal Protection 28 “The Equal Protection Clause ensures that ‘all persons similarly situated should be 1 treated alike.’” Engquist v. Oregon Dep’t of Agr., 478 F.3d 985, 992 (9th Cir. 2007), aff’d 2 sub nom., 553 U.S. 591 (2008). To assert a claim under 42 U.S.C. § 1983 for a violation 3 of the Equal Protection Clause of the Fourteenth Amendment, a plaintiff must show the 4 defendants acted with an intent or purpose to discriminate against the plaintiff based upon 5 membership in a protected class. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 6 2001). However, where a plaintiff does not allege membership in a class or group, the 7 Supreme Court has recognized a class-of-one equal protection claim. Village of 8 Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To prevail on a class-of-one claim, 9 Plaintiffs must show “they have been ‘[1] intentionally [2] treated differently from others 10 similarly situated and that [3] there is no rational basis for the difference in treatment.’” 11 SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122 (9th Cir. 2022) (quoting Olech, 528 12 U.S. at 564). Plaintiffs “must show that the discriminatory treatment ‘was intentionally 13 directed just at [them], as opposed ... to being an accident or a random act.’” N. Pacifica 14 LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (citation omitted). Importantly, 15 “[t]he class-of-one doctrine does not apply to forms of state action that ‘by their nature 16 involve discretionary decisionmaking based on a vast array of subjective, individualized 17 assessments.’” Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (quoting Engquist, 18 553 U.S. at 603). 19 In their Complaint, Plaintiffs allege they have a constitutional right to equal 20 protection and CA Volkmer violated Plaintiffs’ right to equal protection “when he advised 21 Pinal County agencies to not follow county policy.” (Compl. ¶¶ 67-68). At summary 22 judgment, Plaintiffs fail to address their equal protection claim, let alone defend it. It is 23 unclear to which protected class or group of people Plaintiffs contend they belong and how 24 they believe they were discriminated against on that basis. Presuming Plaintiffs alleged a 25 class-of-one equal protection claim—that they were the specific subjects of intentional, 26 discriminatory treatment—the facts at issue here are a quintessential example of the 27 discretionary decisionmaking exception, assuming Plaintiffs would even be able to show 28 discrimination (which they have not). 1 First, Plaintiffs failed to establish Defendants intentionally treated Plaintiffs any 2 differently than all similarly situated residents of the Cactus Forest area in April 2022 at 3 the time of the fire. PCSO only began making courtesy calls to SFVFD in February 2021, 4 and they were terminated in February 2022. The evidence shows the decision to not contact 5 SFVFD in response to the fire in question was motivated by adherence to PCSO legal 6 policy which, at the time, prohibited dispatchers from calling SFVFD. It was not motivated 7 by any kind of animus against Plaintiffs, or even residents of the Cactus Forest area at 8 large. Further, Defendants have demonstrated a rational and legal basis for the County’s 9 policy to suspend courtesy calls to SFVFD, that is, the group did not have a formal IGA or 10 MOU with the County, and the County was investigating several citizen concerns regarding 11 SFVFD’s conduct in responding to fires. Defendants simply were required to engage in 12 due diligence on SFVFD before continuing to place the public’s trust and safety in the 13 volunteer group—albeit arguably that due diligence should have been completed before 14 allowing SFVFD access to County radio channels and providing some non-mandatory 15 courtesy calls. 16 Second, and perhaps more notably, Sheriff Lamb’s decision to stop providing 17 SFVFD with courtesy calls was a discretionary decision within the scope of his duties made 18 after PCSO received citizen complaints relating to SFVFD, sought legal counsel, and 19 determined, in conjunction with counsel, that based on the information known to them at 20 the time, SFVFD presented significant liability concerns. This discretionary 21 decisionmaking is precisely the type of decisionmaking to which the class-of-one doctrine 22 does not apply. See Towery, 672 F.3d at 660. Summary judgment is warranted on 23 Plaintiffs’ equal protection claim. 24 B. Due Process 25 As stated above, Plaintiffs due process claims were improperly introduced for the 26 first time at summary judgment. For that reason, Plaintiffs’ claim fails. Moreover, 27 procedural error notwithstanding, the merits of Plaintiffs’ constitutional claim do not 28 otherwise salvage it. 1 Plaintiffs argue their claims are “rooted in the substantive component of the Due 2 Process Clause of the Fourteenth Amendment.” The Due Process Clause provides, “[n]o 3 State shall…deprive any person of life, liberty, or property, without due process of law.” 4 U.S. CONST. AMEND. XIV, § 1. The Due Process Clause is a limitation on state action 5 rather than a guarantee of minimum levels of state protections, so the government’s failure 6 to prevent acts of private parties is typically insufficient to establish liability under the Due 7 Process Clause. DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189, 195 8 (1989) (“The Clause is phrased as a limitation on the State’s power to act, not as a guarantee 9 of certain minimal levels of safety and security.”) (holding local officials not liable under 10 § 1983 on a failure-to-act theory for injuries inflicted on a child by his father). However, 11 there are two exceptions to this rule: (1) the state-created danger exception, “when the state 12 affirmatively places the plaintiff in danger by acting with deliberate indifference to known 13 or obvious danger” and (2) the special relationship exception, “when a special relationship 14 exists between the plaintiff and the state.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971-72 15 (9th Cir. 2011). Plaintiffs contend the state-created danger exception applies. 16 The state-created danger exception applies if (1) affirmative conduct on the part of 17 a state actor places a plaintiff in danger and (2) the officer acts with deliberate indifference 18 to a known or obvious danger to the plaintiff. Murguia v. Langdon, 61 F.4th 1096, 1111 19 (9th Cir. 2023) (citing Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 20 1997)). “In examining whether an officer affirmatively places an individual in danger, we 21 do not look solely to the agency of the individual, nor do we rest our opinion on what 22 options may or may not have been available to the individual. Instead, we examine whether 23 the officers left the person in a situation that was more dangerous than the one in which 24 they found him.” Id. (quoting Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 25 1086 (9th Cir. 2000)). Further, deliberate indifference requires “a culpable mental state” 26 and the defendant must “actually intend” to expose the plaintiff to risk without regard to 27 the consequences. Id. (quoting Herrera v. L.A. Unified Sch. Dist., 18 F.4th 1156, 1161 (9th 28 Cir. 2021)). 1 Various circuit courts have consistently rejected due process claims against 2 governmental entities for failure to provide emergency services when the government did 3 not create the emergency. See Archie v. City of Racine, 847 F.2d 1211, 1220-23 (7th Cir. 4 1988) (holding fire department dispatcher who failed to send a rescue squad did not violate 5 plaintiff’s constitutional rights when the government did not cause plaintiff’s diseases or 6 otherwise propel her into danger, nor take her into custody, nor hinder her from seeking 7 other sources of aid); Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir. 1992) (holding sheriff 8 did not violate due process by ordering city police squad specially trained in handling 9 hostage situations away from scene and replacing them with county personnel and stating 10 “[t]he due process clause is not implicated by a negligent act of an official which causes 11 unintended loss of or injury to life, liberty, or property … The focus is on the Fourteenth 12 Amendment’s curb of deliberate abuses of governmental power.”); Anderson for Anderson 13 v. City of Minneapolis, 934 F.3d 876, 881 (8th Cir. 2019) (denying due process claim 14 against the government when emergency medical personnel failed to follow guidelines in 15 prematurely declaring decedent’s death and thereby stifling possible aid). 16 Plaintiffs argue Sheriff Lamb’s decision to terminate courtesy calls to SFVFD 17 placed them in danger. But neither Sheriff Lamb nor any other Defendant caused the fire. 18 Defendants did not place Plaintiffs in a more dangerous situation than the one in which 19 they found them. While it may have been foreseeable to Sheriff Lamb and other county 20 officials that terminating courtesy calls to SFVFD might lead to fewer firefighting 21 resources, Defendants did not act with intent to harm Plaintiffs. The evidence shows 22 Sheriff Lamb and county officials made this decision in response to legitimate concerns 23 regarding SFVFD’s operations. The decision was ultimately borne out of promoting public 24 safety, not of depriving Pinal County residents, and in particular the Plaintiffs, with 25 emergency fire services. Whether or not Defendants were negligent in their actions has no 26 bearing on the constitutionality of those actions. Summary judgment is thus warranted on 27 Plaintiffs’ § 1983 claim in favor of all Defendants.2

28 2 Though not raised, it appears Plaintiffs do not have standing to raise these constitutional challenges. All communications and activities regarding firefighting in the Cactus Forest 1 C. Monell Liability 2 “A government entity may not be held liable under 42 U.S.C. § 1983, unless a 3 policy, practice, or custom of the entity can be shown to be a moving force behind a 4 violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th 5 Cir. 2011) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). To establish 6 a Monell claim, “a plaintiff must prove “(1) that [the plaintiff] possessed a constitutional 7 right of which he was deprived; (2) that the municipality had a policy; (3) that this policy 8 amounts to deliberate indifference to the plaintiff’s constitutional right; and, (4) that the 9 policy is the moving force behind the constitutional violation.” Id. (citing Plumeau v. Sch. 10 Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). 11 A Monell claim is “contingent on a violation of constitutional rights” and Plaintiffs 12 are thus required to show an underlying constitutional violation. Lockett v. Cnty. of Los 13 Angeles, 977 F.3d 737, 741 (9th Cir. 2020). Because Plaintiffs have failed to establish a 14 constitutional violation as discussed supra, the Court grants summary judgment on 15 Plaintiffs’ Monell claim. See Sabbe v. Washington Cnty. Bd. of Commissioners, 537 F. 16 Supp. 3d 1205, 1230 (D. Or. 2021), aff’d, 84 F.4th 807 (9th Cir. 2023) (dismissing Monell 17 claim as a matter of law where no constitutional violation occurred). 18 V. Gross Negligence 19 A negligence claim requires proof of four elements: “(1) a duty requiring the 20 defendant to conform to a certain standard of care; (2) a breach by the defendant of that 21 standard; (3) a causal connection between the defendant’s conduct and the resulting injury; 22 and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). A gross 23 negligence claim additionally requires a showing of “[g]ross, willful, or wanton conduct.” 24 Armenta v. City of Casa Grande, 71 P.3d 359, 364 (Ariz. Ct. App. 2003). “Gross 25 negligence is highly potent, and when it is present it fairly proclaims itself in no uncertain 26 terms. It is in the air, so to speak. It is flagrant and evinces a lawless and destructive 27 area occurred with SFVFD—in particular, Vincent—not Plaintiffs. Allen v. Wright, 468 28 U.S. 737, 752 (1984), abrogated on other grounds by Lexmark Intern., Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014). 1 spirit.” Merritt v. Arizona, 425 F. Supp. 3d 1201, 1231–32 (D. Ariz. 2019) (quotation 2 omitted). “A court may, at the summary judgment stage, resolve gross negligence in the 3 defendant’s favor, as a matter of law, ‘if the plaintiff fails to produce evidence that is more 4 than slight and that does not border on conjecture such that a reasonable trier of fact could 5 find gross negligence.’” Mehlschau v. Costco Wholesale Corp., 634 F. Supp. 3d 658, 662 6 (D. Ariz. 2022) (quoting Armenta, 71 P.3d at 365). 7 The remaining Defendants for purposes of the gross negligence claim are Sheriff 8 Lamb and CA Volkmer. Sheriff Lamb cannot be held liable pursuant to Ariz. Rev. Stat. § 9 38-446, which states that “no public officer or employee is personally liable for acts done 10 in his official capacity in good faith reliance on … written opinions of a county attorney of 11 the county[.]” Ariz. Rev. Stat. § 38-446. The undisputed admissible evidence shows that 12 Sheriff Lamb made the decision to terminate courtesy calls to SFVFD in reliance on a 13 written opinion from DCA Jim Heard stating that SFVFD did not appear to “have any 14 authority to make anybody to anything.” This was based on DCA Heard’s discovery that 15 SFVFD (1) did not have a letter of agreement with the State Fire Marshal or the Arizona 16 Department of Fire and Forestry; (2) likely lacked formal firefighting training and had no 17 fire protection authority outside the boundaries of its own property; (3) was not affiliated 18 with the Town of Florence Fire Department; and (4) was operating as a private company. 19 Relying on these recommendations, on February 16, 2022, PCSO officials directed others 20 within PCSO to “cease all services to [SFVFD] immediately other than what’s listed on 21 the LOC and contact will be made to advise [SFVFD] of this[.]” Because PCSO officials 22 specifically sought out advice from PCAO deputies, and relied on this advice, Sheriff Lamb 23 cannot be held liable for gross negligence. 24 Thus, the Court turns to the gross negligence claim against CA Volkmer. Plaintiffs 25 essentially assert CA Volkmer was grossly negligent in rendering an opinion that PCSO 26 had authority to terminate courtesy calls to SFVFD. Viewing the facts in the light most 27 favorable to Plaintiffs, Plaintiffs have failed to present evidence sufficient to show CA 28 Volkmer engaged in “gross, willful, or wanton” conduct when providing legal advice. In 1 his deposition, CA Volkmer testified he opined to PCSO that no authority prevented PCSO 2 from terminating courtesy calls from SFVFD because (1) the County was under no 3 statutory duty to make those calls, (2) SFVFD did not have a MOU or IGA with the County, 4 and (3) the LOC did not impose an obligation on the County to make courtesy calls. CA 5 Volkmer further testified that all other fire agencies that get dispatched from PCSO have a 6 formal agreement, such as an MOU or IGA, which “clearly defines what the expectations 7 are from both parties, and it also includes the compensation.” Because SFVFD lacked an 8 agreement with the County, formal or otherwise, that outlined expectations with respect to 9 terminating courtesy calls, CA Volkmer conclusions cannot be held grossly negligent as a 10 matter of law. Summary judgment is therefore warranted on this claim. 11 CONCLUSION 12 PCSO and PCAO are non-jural entities and are thus improper defendants. Similarly, 13 the County and the PCBOS cannot be held vicariously liable for actions of elected officials 14 such as Sheriff Lamb and CA Volkmer and their deputies because their duties are 15 proscribed by Arizona statutes. Further, PCSO deputies and 911 dispatchers cannot be 16 held liable because it is undisputed Plaintiffs failed to serve notices of claim on them before 17 bringing this action. Plaintiffs’ have failed to establish a constitutional violation sufficient 18 to support a § 1983 claim under the Equal Protection Clause, the Due Process Clause, and 19 Monell. Similarly, Plaintiffs’ gross negligence claim against Sheriff Lamb fails because 20 he relied on a written opinion from the County Attorney’s Office in deciding to terminate 21 courtesy calls to SFVFD. Likewise, the gross negligence claim against CA Volkmer fails 22 because Plaintiffs did not provide evidence sufficient to show that the basis of his advice 23 was “gross, willful, or wanton” when (1) the County was under no statutory duty to make 24 those calls, (2) SFVFD did not have a MOU or IGA with the County, and (3) the LOC did 25 not impose an obligation on the County to make courtesy calls. 26 / / / 27 / / / 28 / / / 1 Accordingly, 2 IT IS ORDERED Defendants’ Motion for Summary Judgment (Doc. 62) is || GRANTED on all claims. Plaintiffs’ Complaint is dismissed in its entirety with prejudice. 4|| The Clerk of Court is directed to enter judgment in favor of Defendants against Plaintiffs □□ and close this case. 6 Dated this 5th day of March, 2025. 7 fo -

7 Honorable Roslyn ©. Silver 10 Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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