Leibel v. Buckeye, City of

Opinion

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

9 Kevin Leibel, et al., No. CV-18-01743-PHX-DWL

10 Plaintiffs, ORDER

11 v.

12 City of Buckeye, et al.,

13 Defendants. 14 15 Pending before the Court is a motion to dismiss portions of the first amended 16 complaint (“FAC”). (Doc. 95.) For the following reasons, the motion will be granted in 17 part and denied in part. 18 BACKGROUND 19 This lawsuit arises from a July 2017 encounter between Officer David Grossman of 20 the Buckeye Police Department (“BPD”) and C.L., a 14-year-old autistic boy. C.L. alleges 21 that Officer Grossman slammed him against a tree, wrestled him to the ground, and then 22 pinned him down while attempting to handcuff him. Officer Grossman initiated the 23 encounter because he witnessed C.L. “stimming”—self-stimulating with a piece of string, 24 which is a common technique used by individuals with autism to calm their nerves—and 25 mistook the stimming for illegal drug use. There is no suggestion C.L. committed a crime 26 before the encounter occurred. 27 In June 2018, C.L. filed the initial complaint. (Doc. 1.)1 It asserted a variety of

28 1 The plaintiffs are actually C.L.’s parents, who are acting as his guardians ad litem (Doc. 20), but for ease of reference the Court will refer to the plaintiffs as C.L. 1 federal and state-law claims against Officer Grossman, certain other BPD officials, and the 2 City of Buckeye (“the City”) (collectively, “Defendants”). (Id.)2 3 On January 30, 2019, the Court issued an order that granted in part, and denied in 4 part, Defendants’ motion to dismiss. (Doc. 40.) One of the counts Defendants sought to 5 dismiss was Count Three, which asserted a Monell claim3 against the City for failing to 6 “enforce proper and adequate training and supervision on interacting and dealing with 7 individuals with disabilities.” (Doc. 7 ¶ 125.) The Court dismissed Count Three because 8 the complaint didn’t allege “a pre-existing pattern of violations” sufficient to show the City 9 had engaged in “deliberate indifference for purposes of failure to train.” (Doc. 40 at 11- 10 12.) In contrast, the Court denied Defendants’ motion to dismiss Count Nine, which 11 asserted a state-law claim for negligent supervision and training against the City and two 12 BPD officials, because the sole dismissal argument proffered by Defendants—that Officer 13 Grossman acted properly, so there could be no negligence in training or supervising him— 14 was unavailing. (Id. at 20-21, citing Doc. 16 at 17.) 15 On June 27, 2019, C.L. conducted a Rule 30(b)(6) deposition of the City, which 16 designated Assistant Police Chief Robert Sanders as its representative. (Doc. 77-3.) C.L. 17 contends that Sanders made various statements during this deposition that show the City 18 had knowledge, well before the incident in July 2017, that autistic individuals are at a 19 higher risk than other citizens of being involved in encounters with police officers and that 20 such encounters often result in the autistic individual’s injury or death. (Doc. 77-1, citing 21 Doc. 77-3 at 2, 15, 25-26.) 22 On August 14, 2019, C.L. filed a motion for leave to file the FAC. (Doc. 77.) 23 Specifically, C.L. sought permission to reassert Count Three (the dismissed failure-to-train 24 claim against the City) based upon the new information elicited during the Sanders 25 2 The complaint also asserted claims against the BPD, but the parties later stipulated 26 to the dismissal of the BPD from this action. (Doc. 20.) 3 “[A] municipality cannot be held liable under § 1983 on a respondeat superior 27 theory.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). Rather, a municipality can be liable under § 1983 when “action that is alleged to be 28 unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Id. at 690. 1 deposition. (Doc. 77-2 ¶¶ 16-42, 149-159.) 2 On September 27, 2019, the Court granted C.L.’s motion. (Doc. 91.) However, 3 the Court made clear that it wasn’t making a definitive judgment about the sufficiency of 4 Count Three—it simply wished to have Defendants raise their challenge to that claim in 5 the context of a motion to dismiss. (Id. at 6.) 6 On October 11, 2019, C.L. filed the FAC. (Doc. 92.) 7 On October 25, 2019, Defendants filed a partial motion to dismiss. (Doc. 95.) 8 On November 8, 2019, C.L. filed a response. (Doc. 96.) 9 On November 15, 2019, Defendants filed a reply. (Doc. 97.)4 10 DISCUSSION 11 I. Preliminary Matters 12 C.L. argues the Court should strike or summarily deny Defendants’ motion because 13 (1) Defendants violated General Order 17-08 by failing to file an answer to the FAC and 14 (2) Defendants violated Local Rule 12.1(c) by failing to certify they’d met and conferred 15 with his counsel before filing the motion. (Doc. 96 at 4-5.) 16 Neither argument is availing. First, although a previous version of General Order 17 17-08 required defendants to file an answer within the time allowed by Rule 12 even if 18 they intended to file a motion to dismiss, General Order 17-08 was amended in November 19 2018 to eliminate that requirement. Second, although the Court is ordinarily a stickler for 20 compliance with Local Rule 12.1(c), the unusual circumstances of this case explain why 21 Defendants may have understandably concluded that compliance wasn’t required here— 22 C.L. had ample notice of Defendants’ grounds for seeking dismissal because the same 23 issues were discussed during the briefing on C.L’s motion to amend. 24 II. Count Three 25 A. Pattern Of Similar Violations 26 Under Connick v. Thompson, 563 U.S. 51 (2011), it is “ordinarily necessary” for a 27 4 Defendants included a request for oral argument in the caption of their reply (Doc. 28 97 at 1), but the Court will deny that request because the issues have been fully briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f). 1 plaintiff seeking to assert a § 1983 claim against a municipality premised on a failure-to- 2 train theory to allege “[a] pattern of similar constitutional violations by untrained 3 employees.” Id. at 62. Defendants argue the FAC fails to satisfy this requirement because 4 it “does not contain any allegations that the City . . . had experienced prior constitutional 5 rights violations of disabled individuals, or any other pattern of violations involving the 6 disabled, much less persons with autism.” (Doc. 95 at 1-2.) C.L. disagrees, arguing that 7 the new factual allegations in the FAC, derived from the Sanders deposition, show that the 8 City had “specific notice and knowledge that members of the autistic community were at 9 a significantly higher risk than other citizens of being involved in encounters with police 10 officers, and that these encounters often resulted in death or serious injury to the disabled 11 person.” (Doc. 96 at 2-3.) According to C.L., the City (through Sanders) acquired this 12 knowledge by reviewing Google alerts, Police Executive Research Forum updates, training 13 videos, headlines, and news stories. (Id. at 6-8.) 14 Defendants have the better side of this argument. The FAC does not allege that any 15 of the Google alerts, forum updates, videos, news stories, or headlines at issue described 16 prior incidents in which a member of the Buckeye Police Department violated the rights of 17 a disabled individual or an individual with autism. (Doc. 92 ¶¶ 16-31, 151.) Instead, these 18 materials apparently described incidents involving other unspecified police departments. 19 This is insufficient to show the requisite pattern under Connick. See, e.g., Flores v. County 20 of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (affirming dismissal of failure-to-train 21 claim against municipal defendant because the plaintiff did “not allege a pattern of sexual 22 assaults perpetrated by Los Angeles sheriff’s deputies before her alleged assault in 2011”) 23 (emphasis added); Jewell v. Ridley Tp., 497 Fed. App’x 182, 186 (3d Cir. 2012) (affirming 24 rejection of failure-to-train claim against city because “[w]ithout a pattern of constitutional 25 violations during police pursuits involving the Ridley police, we cannot conclude that 26 Ridley exhibited deliberate indifference in its efforts to train its officers when it provided 27 enough training for its officers to be generally familiar with the pursuit policy”) (emphasis 28 added). After all, incidents involving other police departments would not have placed the 1 City on notice that its training program was inadequate. And “[w]ithout notice that a course 2 of training is deficient in a particular respect, decisionmakers can hardly be said to have 3 deliberately chosen a training program that will cause violations of constitutional rights.” 4 Connick, 563 U.S. at 62. 5 B. Single-Incident Liability 6 In Connick, the Supreme Court also recognized “the possibility, however rare, that 7 the unconstitutional consequences of failing to train could be so patently obvious that a city 8 could be liable under § 1983 without proof of a pre-existing pattern of violations.” 563 9 U.S. at 64. As an illustration of a situation where such ‘single-incident’ liability” might be 10 available, the Court provided “the hypothetical example of a city that arms its police force 11 with firearms and deploys the armed officers into the public to capture fleeing felons 12 without training the officers in the constitutional limitation on the use of deadly force.” Id. 13 at 63. The Court emphasized, however, that this “hypothetical assumes that the armed 14 police officers have no knowledge at all of the constitutional limits on the use of deadly 15 force.” Id. at 67. Thus, the Court suggested that single-incident liability would not be 16 available against a city that provided general training to its employees and was accused of 17 failing to provide training about a “particular [subtopic] or the specific scenario related to 18 the violation in [the] case,” because “[t]hat sort of nuance simply cannot support an 19 inference of deliberate indifference.” Id. 20 Defendants argue that single-incident liability is unavailable here because the FAC 21 acknowledges that the City provided crisis intervention training to its officers and further 22 acknowledges that the City provided at least some training to Officer Grossman concerning 23 the dangers facing autistic members of the community. (Doc. 95 at 10.) Defendants also 24 identify an array of other cases in which courts rejected failure-to-train claims premised on 25 single incidents. (Id. at 8-10.) In response, C.L. argues that the Google alerts and other 26 materials Sanders viewed made it “highly predictable” that the City’s continued “fail[ure] 27 to train its officers on interacting with disabled individuals could lead to the violation of an 28 autistic citizen’s rights.” (Doc. 96 at 9.) C.L. also identifies his own list of cases in which 1 courts allowed failure-to-train claims to proceed based upon a single incident and seeks to 2 distinguish the cases cited by Defendants. (Id. at 10-13.) 3 The Court agrees with Defendants that this case does not fall within the “rare” and 4 “narrow” band of cases in which failure-to-train liability could be imposed against a city 5 despite the absence of a pattern of earlier violations. The FAC does not suggest the City 6 failed to provide any use-of-force training to its officers. The FAC also acknowledges the 7 City provided crisis intervention training to its officers and separately provided additional 8 materials that “touch[ed] upon autism specifically.” (Doc. 92 ¶¶ 35, 37.) Although the 9 FAC questions the sufficiency of these training efforts and contends the City should have 10 provided more meaningful, specific training concerning autism, Connick makes clear that 11 a plaintiff cannot establish single-incident liability merely by showing that a city’s training 12 efforts failed to address “the specific scenario related to the violation in [the] case.” 563 13 U.S. at 67. “That sort of nuance simply cannot support an inference of deliberate 14 indifference.” Id. 15 Thus, Count Three of the FAC will be dismissed.5 16 III. Undisputed Matters 17 Defendants also move to dismiss (1) the portions of the FAC suggesting that the 18 BPD remains a defendant and (2) Count Four of the FAC, to the extent it seeks to assert an 19 ADA claim against Officer Grossman. (Doc. 95 at 12.) In response, C.L. acknowledges 20 that he “is not asserting claims against the BPD and any allegations against the BPD 21 contained in [the FAC] should be construed as directed toward [the City]” and further 22 acknowledges that Officer Grossman’s “inclusion in [the ADA claim] was inadvertent.” 23 (Doc. 96 at 16.) 24 Given these clarifications, there is nothing further for the Court to do. The BPD has 25 already been dismissed from the case (Doc. 20) and the Court has already dismissed Officer 26 Grossman as a defendant in the ADA count (Doc. 40 at 14). 27 5 This conclusion makes it unnecessary to resolve Defendants’ alternative claim that 28 Count Three should be dismissed because it fails to allege a plausible causal connection between the alleged lack of training and C.L.’s injury. (Doc. 95 at 10-11.) IV. Count Six 2 As noted, the Court previously denied Defendants’ motion to dismiss C.L.’s state- || law claim for negligent training and supervision—which was Count Nine of the original complaint but has been renumbered as Count Six of the FAC—because the sole dismissal 5 || argument proffered by Defendants lacked merit. (Doc. 40 at 20-21.) 6 Defendants now identify additional reasons why that claim should be dismissed. (Doc. 95 at 13-17.) The Court will decline to consider those arguments. Rule 12(g)(2) of 8 || the Federal Rules of Civil Procedure provides that, except in circumstances not present 9|| here, “a party that makes a motion under this rule must not make another motion under this || rule raising a defense or objection that was available to the party but omitted from its earlier 11 || motion.” That is exactly the scenario here—Defendants are attempting to raise dismissal 12 || arguments they could have raised in their Rule 12(b)(6) motion to dismiss the original 13 || complaint. See generally Wafra Leasing Corp. 1999-A-1 y. Prime Capital Corp., 247 F. Supp. 2d 987, 999 (N.D. Ill. 2002) (“Rule 12(g) generally precludes a defendant from 15 || bringing successive motions to dismiss raising arguments that the defendant failed to raise at the first available opportunity.”); Fed. Agr. Mortgage Corp. v. It’s A Jungle Out There, || Inc., 2005 WL 3325051, *5 (N.D. Cal. 2005) (“[W]here the complaint is amended after the 18 || defendant has filed a Rule 12(b) motion, the defendant may not thereafter file a second Rule 12(b) motion asserting objections or defenses that could have been asserted in the || first motion.”).° 21 Accordingly, IT IS ORDERED that Defendants’ partial motion to dismiss (Doc. 22 || 95) is granted in part and denied in part. 23 Dated this 31th day of January, 2020. 3 _

26 United States District Judge 27 6 Count Six of the FAC is largely unchanged from Count Nine of the original complaint. (Doc. 77-2 at 26-27.) -7-