1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeremy Johnson, et al., No. CV-24-00530-PHX-MTL 10 Plaintiffs, ORDER 11 v. 12 Chandler Unified School District, et al., 13 Defendants. 14 15 I. 16 Plaintiffs, a high school football player, KJ, and his parents allege that KJ was 17 harassed and assaulted by fellow players. They also contend that the school administration 18 and football staff knew but failed to prevent it from continuing. 19 The Court now considers the Motion to Dismiss the Amended Complaint filed by 20 Defendants Chandler Unified School District, Michael Franklin, James Culver, Luke 21 Hickey, Richard Garretson, Brett Boyd, and Frank Narducci (collectively, the “CUSD 22 Defendants”). (Doc. 34) The Motion is fully briefed. The CUSD Defendants request oral 23 argument, however, the Court finds that oral argument will not aid in the determination of 24 the Motion and is therefore unnecessary.1 25 II. 26 To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), 27 “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 28 1 Also sued are several minor Defendants, who are alleged to have harassed and assaulted KJ, along with their parents. These Defendants did not join in this Motion. 1 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 8. A claim 3 is facially plausible when it contains “factual content that allows the court to draw the 4 reasonable inference” that the moving party is liable. Iqbal, 556 U.S. at 678. At the pleading 5 stage, the Court’s duty is to accept all well-pleaded complaint allegations as true. Id. Facts 6 should be viewed “in the light most favorable to the non-moving party.” Faulkner v. ADT 7 Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). “[D]ismissal . . . is proper if there is 8 a lack of a cognizable legal theory or the absence of sufficient facts alleged under a 9 cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 10 2011) (quoting Balisteri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)) 11 (internal marks omitted). 12 III. 13 A. 14 In Count IX of the Amended Complaint, Plaintiffs Jeremy and Latonia Johnson, 15 KJ’s parents, assert an Arizona common-law claim for loss of consortium arising from their 16 son’s injuries.2 The CUSD Defendants move to dismiss with prejudice, arguing that this 17 claim is untimely under Arizona’s one-year statute of limitations for claims against public 18 entities and employees. A.R.S. § 12-821; Lee v. City of Kingman, 124 F. Supp. 3d 985, 992 19 (D. Ariz. 2015) (holding that a claim for loss of consortium against municipal defendants 20 is governed by Arizona’s one-year statute of limitations for actions against government 21 entities and employees). 22 Plaintiffs argue that the statute of limitations was tolled while they tried to negotiate 23 a settlement before filing this lawsuit, citing A.R.S. § 12-821.01(C). But that statute applies 24 only when the 180-day notice of claim deadline is tolled for a mandatory dispute resolution 25 or administrative review process. That is not the case here, as Plaintiffs have not shown 26 any mandatory dispute resolution or administrative review process applicable to their loss 27 of consortium claim against the CUSD Defendants. Plaintiffs’ argument that dismissing
28 2 Plaintiff KJ’s loss of consortium claim, asserted in Count IX, is not subject to the Motion to Dismiss. 1 their loss of consortium claim results in piecemeal litigation also misses the mark because 2 there is no other litigation relating to the parents’ loss of consortium claim. 3 The Court finds that the one-year statute of limitations bars the parents’ loss of 4 consortium claim. This finding is based on the allegations of the Amended Complaint, 5 which alleges multiple instances of abuse from August 2021 through March 2022. (Doc. 6 33 ¶¶ 40-51) The Amended Complaint contends that KJ’s parents reported the abuse to the 7 CUSD Defendants and others during this period. (Id. ¶¶ 41-43, 46) This action was filed 8 on March 12, 2024, about two years after the alleged last date of abuse. Plaintiffs Jeremy 9 and Latonia Johnson’s loss of consortium claim against the CUSD Defendants is time- 10 barred. Count IX will be dismissed with prejudice because no pleading amendment can 11 cure this legal deficiency. 12 B. 13 The CUSD Defendants next move to dismiss Counts I, II, and IV of the Amended 14 Complaint. Count I asserts a Fourteenth Amendment due process civil rights claim that 15 Defendants breached a duty to protect KJ from harm while on school property during the 16 school day and on and off school property during extracurricular activities. (Doc. 33 ¶ 69) 17 Count II asserts a municipal liability claim against Defendant Chandler Unified School 18 District for “failure to properly train, supervise, control, and discipline the individual 19 employee Defendants.” (Id. ¶ 82) Finally, Count IV asserts a Fourteenth Amendment due 20 process claim against the individual employee Defendants—Franklin, Hickey, Culver, 21 Garretson, Boyd, and Narducci—claiming that they conspired with one another to prevent 22 the minor Defendants’ alleged misconduct to the proper authorities. (Id. ¶ 96) These claims 23 are brought under the Civil Rights Act, 42 U.S.C. § 1983. According to the CUSD 24 Defendants, these claims for relief should be dismissed because the Amended Complaint 25 fails to allege that they had a constitutional duty to protect KJ and that there are no well- 26 pleaded facts to support the elements required to prove liability. 27 1. 28 The Supreme Court has held that the due process clause does not obligate state 1 officials to protect individuals from violence. DeShaney v. Winnebago Cnty. Dep’t. of Soc. 2 Servs., 489 U.S. 189, 195 (1989); see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th 3 Cir. 2011) (“[T]he Fourteenth Amendment’s Due Process Clause generally does not confer 4 any affirmative right to government aid, even where such aid may be necessary to secure 5 life, liberty, or property interests.”). In DeShaney, a four-year-old was beaten so severely 6 by his father that the child was expected to live his entire life in an institution. 489 U.S. at 7 193. Prior to this, the child’s stepmother notified the county’s child protective services 8 division of suspected physical abuse. Id. at 192.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jeremy Johnson, et al., No. CV-24-00530-PHX-MTL 10 Plaintiffs, ORDER 11 v. 12 Chandler Unified School District, et al., 13 Defendants. 14 15 I. 16 Plaintiffs, a high school football player, KJ, and his parents allege that KJ was 17 harassed and assaulted by fellow players. They also contend that the school administration 18 and football staff knew but failed to prevent it from continuing. 19 The Court now considers the Motion to Dismiss the Amended Complaint filed by 20 Defendants Chandler Unified School District, Michael Franklin, James Culver, Luke 21 Hickey, Richard Garretson, Brett Boyd, and Frank Narducci (collectively, the “CUSD 22 Defendants”). (Doc. 34) The Motion is fully briefed. The CUSD Defendants request oral 23 argument, however, the Court finds that oral argument will not aid in the determination of 24 the Motion and is therefore unnecessary.1 25 II. 26 To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), 27 “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 28 1 Also sued are several minor Defendants, who are alleged to have harassed and assaulted KJ, along with their parents. These Defendants did not join in this Motion. 1 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Fed. R. Civ. P. 8. A claim 3 is facially plausible when it contains “factual content that allows the court to draw the 4 reasonable inference” that the moving party is liable. Iqbal, 556 U.S. at 678. At the pleading 5 stage, the Court’s duty is to accept all well-pleaded complaint allegations as true. Id. Facts 6 should be viewed “in the light most favorable to the non-moving party.” Faulkner v. ADT 7 Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). “[D]ismissal . . . is proper if there is 8 a lack of a cognizable legal theory or the absence of sufficient facts alleged under a 9 cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 10 2011) (quoting Balisteri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)) 11 (internal marks omitted). 12 III. 13 A. 14 In Count IX of the Amended Complaint, Plaintiffs Jeremy and Latonia Johnson, 15 KJ’s parents, assert an Arizona common-law claim for loss of consortium arising from their 16 son’s injuries.2 The CUSD Defendants move to dismiss with prejudice, arguing that this 17 claim is untimely under Arizona’s one-year statute of limitations for claims against public 18 entities and employees. A.R.S. § 12-821; Lee v. City of Kingman, 124 F. Supp. 3d 985, 992 19 (D. Ariz. 2015) (holding that a claim for loss of consortium against municipal defendants 20 is governed by Arizona’s one-year statute of limitations for actions against government 21 entities and employees). 22 Plaintiffs argue that the statute of limitations was tolled while they tried to negotiate 23 a settlement before filing this lawsuit, citing A.R.S. § 12-821.01(C). But that statute applies 24 only when the 180-day notice of claim deadline is tolled for a mandatory dispute resolution 25 or administrative review process. That is not the case here, as Plaintiffs have not shown 26 any mandatory dispute resolution or administrative review process applicable to their loss 27 of consortium claim against the CUSD Defendants. Plaintiffs’ argument that dismissing
28 2 Plaintiff KJ’s loss of consortium claim, asserted in Count IX, is not subject to the Motion to Dismiss. 1 their loss of consortium claim results in piecemeal litigation also misses the mark because 2 there is no other litigation relating to the parents’ loss of consortium claim. 3 The Court finds that the one-year statute of limitations bars the parents’ loss of 4 consortium claim. This finding is based on the allegations of the Amended Complaint, 5 which alleges multiple instances of abuse from August 2021 through March 2022. (Doc. 6 33 ¶¶ 40-51) The Amended Complaint contends that KJ’s parents reported the abuse to the 7 CUSD Defendants and others during this period. (Id. ¶¶ 41-43, 46) This action was filed 8 on March 12, 2024, about two years after the alleged last date of abuse. Plaintiffs Jeremy 9 and Latonia Johnson’s loss of consortium claim against the CUSD Defendants is time- 10 barred. Count IX will be dismissed with prejudice because no pleading amendment can 11 cure this legal deficiency. 12 B. 13 The CUSD Defendants next move to dismiss Counts I, II, and IV of the Amended 14 Complaint. Count I asserts a Fourteenth Amendment due process civil rights claim that 15 Defendants breached a duty to protect KJ from harm while on school property during the 16 school day and on and off school property during extracurricular activities. (Doc. 33 ¶ 69) 17 Count II asserts a municipal liability claim against Defendant Chandler Unified School 18 District for “failure to properly train, supervise, control, and discipline the individual 19 employee Defendants.” (Id. ¶ 82) Finally, Count IV asserts a Fourteenth Amendment due 20 process claim against the individual employee Defendants—Franklin, Hickey, Culver, 21 Garretson, Boyd, and Narducci—claiming that they conspired with one another to prevent 22 the minor Defendants’ alleged misconduct to the proper authorities. (Id. ¶ 96) These claims 23 are brought under the Civil Rights Act, 42 U.S.C. § 1983. According to the CUSD 24 Defendants, these claims for relief should be dismissed because the Amended Complaint 25 fails to allege that they had a constitutional duty to protect KJ and that there are no well- 26 pleaded facts to support the elements required to prove liability. 27 1. 28 The Supreme Court has held that the due process clause does not obligate state 1 officials to protect individuals from violence. DeShaney v. Winnebago Cnty. Dep’t. of Soc. 2 Servs., 489 U.S. 189, 195 (1989); see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th 3 Cir. 2011) (“[T]he Fourteenth Amendment’s Due Process Clause generally does not confer 4 any affirmative right to government aid, even where such aid may be necessary to secure 5 life, liberty, or property interests.”). In DeShaney, a four-year-old was beaten so severely 6 by his father that the child was expected to live his entire life in an institution. 489 U.S. at 7 193. Prior to this, the child’s stepmother notified the county’s child protective services 8 division of suspected physical abuse. Id. at 192. County officials and medical professionals 9 investigated and determined (incorrectly) that the child was not in danger and removal from 10 his father’s home was not justified. See id. Caseworkers visited the home many times 11 thereafter and, despite observing obvious signs of child abuse, they did nothing. See id. at 12 193. In affirming the district court’s order granting summary judgment for defendants, the 13 Supreme Court reasoned: 14 [O]ur cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even 15 where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not 16 deprive the individual. . . . If the Due Process Clause does not require the State to provide its citizens with particular 17 protective services, it follows that the State cannot be held 18 liable under the Clause for injuries that could have been averted had it chosen to provide them. As a general matter, then, we 19 conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the 20 Due Process Clause. 21 Id. at 196-97 (citations omitted). 22 Some exceptions to this rule exist. The first involves a “‘special 23 relationship’ . . . between the plaintiff and the state,” and it applies when the state has 24 assumed custody over the plaintiff. Patel, 264 F.3d at 971-72 (citing DeShaney, 489 U.S. 25 at 198-202). Plaintiffs concede that this exception does not apply here because KJ was not 26 in custody. (Doc. 44 at 7) 27 The second, known as the state-created danger exception, applies “when the state 28 affirmatively places the plaintiff in danger by acting with ‘deliberate indifference’ to a 1 ‘known or obvious danger.’” Patel, 264 F.3d at 971-72 (quoting L.W. v. Grubbs, 92 F.3d 2 894, 900 (9th Cir. 1996)). To succeed on the state-created danger exception, a plaintiff 3 must show “affirmative conduct on the part of the state [actor] placing the plaintiff in 4 danger” and that the state actor behaved “with deliberate indifference to a known or 5 obvious danger.” Id. at 974 (cleaned up). 6 Plaintiffs concede that a state actor generally does not owe a duty of protection. 7 (Doc. 44 at 6-7) They oppose dismissal because they allege—for the first time in their 8 response brief—that the CUSD Defendants owed the duty of protection under the state- 9 created danger exception. But the Amended Complaint contains no well-pleaded factual 10 allegations supporting either prong of the applicable test. The Response to the Motion to 11 Dismiss fares no better, offering platitudes like “the state actor placed the child in danger 12 by its affirmative conduct, . . . school officials permitted the perpetrators of the egregious 13 conduct to continue to participate in the school sponsored activities after having been 14 alerted to their criminal conduct.” (Doc. 44 at 7) The brief speculates that “[h]ad the school 15 district prohibited the minor defendants from playing football” or “expelled the 16 perpetrators, the minor Plaintiff would not have been subjected to any of the abuses.” (Id. 17 at 8) These naked assertions provide no factual basis with which this Court can discern a 18 viable claim for relief. There are no well-pleaded facts from which the Court can discern 19 affirmative conduct placing KJ in danger or that any CUSD employee acted with deliberate 20 indifference. Counts I and IV must be dismissed. 21 2. 22 The CUSD Defendants argue that Count II should be dismissed because it fails to 23 allege a plausible municipal liability claim. By its terms, § 1983 only authorizes a claim 24 for relief against a person who acts under color of state law. West v. Atkins, 487 U.S. 42, 25 48 (1988). In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme 26 Court held that a municipality generally is not liable for a § 1983 violation under a theory 27 of respondeat superior for the actions of its subordinates. But a plaintiff can raise a Monell 28 claim against a municipality “(1) when ‘implementation of its official policies or 1 established customs inflicts the constitutional injury,’ (2) ‘for acts of omission, when such 2 omissions amount to the local government’s own official policy,’ or (3) ‘when the 3 individual who committed the constitutional tort was an official with final policy-making 4 authority or such an official ratified a subordinate’s unconstitutional decision or action and 5 the basis for it.’” Andrich v. Kostas, 470 F. Supp. 3d 1048, 1063 (D. Ariz. 2020) (quoting 6 Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249–50 (9th Cir. 2010)). To 7 successfully plead a Monell claim, allegations in a complaint “may not simply recite the 8 elements of a cause of action but must contain sufficient allegations of underlying facts to 9 give fair notice and to enable the opposing party to defend itself effectively.” AE ex rel. 10 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 11 652 F.3d 1202, 1216 (9th Cir. 2011)). 12 The Amended Complaint alleges that CUSD failed “to properly train, supervise, 13 control, and discipline the individual employee Defendants . . . by the proper methods and 14 procedures by which to protect the minor Plaintiff from the dangerous conditions that 15 resulted in [his] injuries and damages.” (Doc. 33 ¶ 82; see also ¶¶ 83-89) But it does not 16 assert any well-pleaded facts to support its basic recitation of the Monell holding. Plaintiffs’ 17 Response brief argues that “[t]he allegations in the [A]mended Complaint make it clear 18 that the continued assault on the minor Plaintiff by the Defendant perpetrators continued 19 unabated . . . [and] [t]he allegations in the [A]mended [C]omplaint support the claim that 20 the school district engaged in deliberate indifference . . . because it failed to train its 21 employees on the proper necessary to protect the minor Plaintiff.” (Doc. 44 at 43-44) This 22 suffers from two flaws. The first is that there are no well-pleaded facts to support the 23 Monell claim. The second is that there are no well-pleaded facts supporting either part of 24 the state-created danger test. Count II must be dismissed. 25 3. 26 The Court finds that the claims for relief asserted in Counts I, II, and IV of the 27 Amended Complaint fail to satisfy the minimum pleading standards of Federal Rule of 28 Civil Procedure 8 and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). They will be 1 || dismissed without prejudice. The Court will grant Plaintiffs leave to file a Second || Amended Complaint. 3 IV. 4 For the reasons set forth above, 5 IT IS ORDERED that the CUSD Defendants’ Motion to Dismiss (Doc. 34) is || GRANTED as follows: 7 1. Plaintiffs Jeremy and Latonia Johnson’s loss of consortium claims, asserted 8 || in Count IX of the Amended Complaint, are dismissed with prejudice because it is barred by the applicable statute of limitations. 10 2. Counts I, II, and IV are dismissed without prejudice for failure to allege 11 || well-pleaded facts that support plausible claims for relief. 12 IT IS FURTHER ORDERED that Plaintiffs may file a Second Amended 13 || Complaint within two weeks of the date of this Order. 14 Dated this 9th day of September, 2024. 15 . 16 WM Chal T. Hburde 7 . Michael T, Liburdi United States District Judge 18 19 20 21 22 23 24 25 26 27 28
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