Mosher v. Mesa, City of

• Court: District Court, D. Arizona
• Decided: December 9, 2024
• Docket: 2:22-cv-00833
• Status: Unknown

Opinion

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

9 William Mosher, No. CV-22-00833-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 City of Mesa, et al.,

13 Defendants. 14 15 Before the Court is Defendants’ Motion to Dismiss (Doc. 75) Counts II through VI 16 of Plaintiff’s Second Amended Complaint (“SAC”) (Doc. 70). Plaintiff filed a Response 17 (Doc. 82), and Defendants filed a Reply (Doc. 84). After reviewing the briefing and 18 relevant case law, the Court will grant the Motion as to Count III and deny the Motion as 19 to all other Counts. 20 I. BACKGROUND 21 A. Mosher’s Arrest 22 In July 2021, Plaintiff William Mosher was driving in Mesa, Arizona with an 23 acquaintance sitting in the front passenger seat. (Doc. 70 at 2 ¶¶ 9–10.) The acquaintance 24 had a warrant for his arrest. (Id. ¶ 10.) While Mosher was stopped at a traffic light, several 25 law enforcement agencies converged on Mosher’s position and utilized a “vehicle 26 containment” tactic to prevent his vehicle from moving. (Id. ¶¶ 12–13.) Law enforcement 27 officers then told Mosher they were executing a warrant to arrest the acquaintance. (Id. 28 at 2–3 ¶¶ 14–15.) Mosher showed the officers his empty hands and proceeded to exit his 1 vehicle. (Id. at 3 ¶¶ 16–20.) 2 After Mosher exited his vehicle, an officer ordered him to “show that he had no 3 weapons,” triggering Mosher to lift his shirt exposing his waistband. (Id. ¶¶ 21–22.) While 4 Mosher’s shirt was lifted, an officer fired a beanbag shotgun round at his stomach. (Id. 5 ¶ 24.) The round struck Mosher, causing him to step back and turn. (Id. ¶25.) With 6 Mosher’s back turned, Officer Jason Alexander fired another beanbag round striking 7 Mosher’s buttocks, causing him to fall to the ground. (Id. ¶¶ 24–28.) While Mosher was 8 on the ground with his hands on his head, Officer Evan Wick, who was sitting in his 9 vehicle, shot Mosher in the back with a taser. (Id. ¶ 30.) Officers then handcuffed Mosher 10 and transported him to the Mesa Police Department Holding Facility. (Id. ¶ 31.) Police 11 eventually transported Mosher to a hospital for treatment of the injuries sustained during 12 his arrest. (Id. ¶¶ 32–36.) The police uncuffed Mosher, left the hospital, and did not engage 13 in further contact. (Id. at 3–4 ¶ 37.) 14 B. The Police Reports and Mosher’s Criminal Case 15 Mosher alleges that after his arrest, Officer Alexander and Officer Wick 16 (collectively, the “Officers”) drafted police reports (the “Reports”) that contained 17 substantial falsehoods, including “falsely claiming Mosher presented an imminent risk of 18 serious harm to officers before Defendants shot and tased him.” (Id. at 4–5 ¶¶ 38, 52.) 19 Mosher further alleges that Officer Alexander used the fabricated Reports to complete a 20 “submission form” recommending Mosher be charged with resisting arrest under Arizona 21 Revised Statute § 13-2508(A)(2) and obstructing governmental operations under Arizona 22 Revised Statute § 13-2402(A)(2). (Id. at 4 ¶ 40.) 23 After the hospital released Mosher, he hired counsel to determine whether his 24 interaction with law enforcement violated his civil rights. (Id. at 4 ¶ 45.) In doing so, 25 Mosher’s counsel served public records requests on the Mesa Police Department. (Id. 26 ¶ 46.) The Department did not respond to the initial request, so counsel followed up on 27 November 17, 2021. (Id. ¶ 48.) Shortly thereafter, in December 2021, Mosher received a 28 summons to appear before the Mesa Municipal Court for charges related to his arrest in 1 July 2021. (Id. ¶ 49.) 2 Mosher was charged under § 13-2508(A)(2) for resisting arrest and 3 § 13-2402(A)(2) for obstructing governmental operations. (Id. ¶ 50.) In Mosher’s view, 4 the Officers weaponized fabricated evidence to mount a criminal prosecution intended to 5 thwart any potential civil rights case Mosher might pursue because of the Officers’ use of 6 excessive force. (Id. at 5 ¶ 54.) Before the case proceeded to trial, the City of Mesa (the 7 “City”) dropped the obstruction charge. (Id. ¶ 57.) And on October 19, 2023, the jury 8 rendered a not guilty verdict on the resisting arrest charge. (Id. ¶¶ 58–59.) 9 C. The Instant Lawsuit 10 Mosher filed his first Complaint in May 2022. (Doc. 1.) On July 14, 2022, this 11 Court entered an Order staying the case “pending resolution of Mosher’s parallel criminal 12 case, number 2021078080.” (Doc. 23.) On November 17, 2023, after Mosher’s criminal 13 case concluded, the Court lifted the stay (Doc. 37), and Mosher filed an Amended 14 Complaint (Doc. 38). Thereafter, the parties stipulated to dismiss the state law assault and 15 battery claims against the Officers because Mosher failed to individually serve them with 16 a notice of claim pursuant to Arizona Revised Statute § 12-821.01. (Doc. 40.) On May 17 17, 2024, Mosher filed his SAC, the operative complaint in this case. Therein, Mosher 18 alleges two 42 U.S.C. § 1983 claims against the Officers: excessive force (Count I) and 19 malicious prosecution (Count II). (Id. at 5–6 ¶¶ 63–73.) Against the City, Mosher alleges 20 a federal local governing body liability claim under Monell v. Dep’t Soc. Servs., 436 U.S. 21 658 (1978) (Count III), and state law claims of battery (Count IV), negligence/gross 22 negligence (Count V), and malicious prosecution (Count VI). (Id. at 6–8 ¶¶ 74–92.) 23 Defendants then filed a Motion to Dismiss Counts II through VI of the SAC. (Doc. 75.) 24 II. LEGAL STANDARD 25 To survive a Federal Rule of Civil Procedure 12(b)(6) motion for failure to state a 26 claim, a complaint must comply with Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain 27 statement of the claim showing that the pleader is entitled to relief,” so that the defendant 28 has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 1 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 2 (1957)). This exists if the pleader sets forth “factual content that allows the court to draw 3 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 4 v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of 5 action, supported by mere conclusory statements, do not suffice.” Id. 6 Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory 7 or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. 8 Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a 9 cognizable legal theory will survive a motion to dismiss if it contains sufficient factual 10 matter, which, if accepted as true, states a claim to relief that is “plausible on its face.” 11 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal 12 “probability,” but requires “more than a sheer possibility that a defendant has acted 13 unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a 14 defendant’s liability, it ‘stops short of the line between possibility and plausibility.’” Id. 15 (quoting Twombly, 550 U.S. at 557). 16 In ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are 17 taken as true and construed in the light most favorable to the nonmoving party. Cousins v. 18 Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as 19 factual allegations are not given a presumption of truthfulness, and “conclusory allegations 20 of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto 21 v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). 22 III. DISCUSSION 23 The Court briefly discusses two initial matters. First, Mosher agrees with 24 Defendants that his Monell claim (Count III) should be dismissed. (See Doc. 82 at 2, 17.) 25 Therefore, the Court will dismiss Count III with prejudice. 26 Second, in ruling on a motion to dismiss, the Court may consider “matters of judicial 27 notice,” see United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003), including 28 information that is “generally known within the trial court’s territorial jurisdiction; or can 1 be accurately and readily determined from sources whose accuracy cannot reasonably be 2 questioned,” Fed. R. Evid. 201(b); but see Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 3 988, 999 (9th Cir. 2018) (“[A] court cannot take judicial notice of disputed facts contained 4 in . . . public records.”). Importantly, considering matters of judicial notice does not 5 transmute a motion to dismiss into one for summary judgment. See Ritchie, 342 F.3d 6 at 908. Proper subjects of judicial notice include judgments and other court documents. 7 See, e.g., United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007); see also Khoja, 899 8 F.3d at 999 (“Just because the document itself is susceptible to judicial notice does not 9 mean that every assertion of fact within that document is judicially noticeable for its 10 truth.”). A court should not accept as true “allegations that contradict matters properly 11 subject to judicial notice,” nor “allegations that are merely conclusory, unwarranted 12 deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 13 1049, 1055 (9th Cir. 2008) (citation omitted). 14 Defendants request the Court to take judicial notice of the criminal trial transcript 15 attached to Defendants’ Motion to Dismiss (Doc. 75). Additionally, Defendants ask that 16 the Court take notice of the Maricopa County Attorney Office submission form dated July 17 8, 2021 (the “Submission Form”) for the limited purpose of establishing the date of 18 submission. The Submission Form is referenced without a specific date in the SAC, (Doc. 19 70 at 4 ¶¶ 38–40), and Defendants have provided a copy of the Submission Form obtained 20 via subpoena duces tecum submitted to the Maricopa County Attorney’s Office, (Doc. 21 84-1). With seemingly no objection from Mosher, the Court will take judicial notice of 22 both the criminal trial transcript and, for the limited purpose of establishing the date, the 23 Submission Form. 24 A. Malicious Prosecution (Counts II and VI) 25 Defendants offer several distinct challenges to Mosher’s malicious prosecution 26 claims. First, Defendants argue that Mosher’s federal malicious prosecution claim against 27 the Officers is barred, as there is an adequate remedy existing under state law. (Doc. 75 28 at 7 (citing Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985); Freeman v. City of Santa 1 Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)); see also Doc. 84 at 11–12.) Additionally, 2 Defendants contend that Mosher’s federal and state malicious prosecution claims fail 3 because he has not overcome the presumption of prosecutorial independence. (Doc. 84 4 at 9.) Defendants also argue that both claims fail because Mosher cannot show a causal 5 link between the criminal charges (resisting arrest and obstruction of governmental 6 operations) and the alleged “fabricated evidence.” (Doc. 75 at 7; Doc. 84 at 8–9.) Finally, 7 Defendants maintain that the claims fail because the record shows that probable cause 8 existed to arrest Mosher and initiate criminal proceedings against him. (Doc. 75 at 9–10; 9 Doc. 84 at 9–11.) 10 In response, Mosher argues that he sufficiently alleged all elements of his federal 11 and state law § 1983 malicious prosecution claims, which includes his allegations that the 12 Officers deprived him of his First Amendment right to free speech. (Doc. 82 at 16.) 13 Mosher also contends that probable cause is not readily discernible given the allegations in 14 the SAC. (Id. at 8–9.) And, according to Mosher, the SAC precludes finding probable 15 cause as his allegations show his prosecution was induced by “fabricated evidence and 16 wrongful conduct.” (Doc. 82 at 11 (citing Awabdy v. City of Adelanto, 368 F.3d 1062, 17 1067 (9th Cir. 2004)).) 18 “Federal courts rely on state common law for elements of malicious prosecution.” 19 Mills v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019) (citation omitted). “Federal 20 and state malicious prosecution claims are intertwined; to adequately plead federal 21 malicious prosecution, a plaintiff must allege the elements of a state malicious prosecution 22 claim and establish that the prosecution was conducted for the purpose of denying plaintiff 23 a specific constitutional right.” Henry v. City of Somerton, No. CV-18-03058-PHX-DJH, 24 2020 WL 8574831, at *8 (D. Ariz. 2020) (citing Awabdy, 368 F.3d at 1066; Usher v. City 25 of L.A., 828 F.2d 556, 562 (9th Cir. 1987)). Under Arizona law, a malicious prosecution 26 claim requires: “(1) a criminal prosecution, (2) that terminates in favor of plaintiff, (3) with 27 defendants as prosecutors, (4) actuated by malice, (5) without probable cause, and (6) 28 causing damages.” Id. (citing Slade v. City of Phoenix., 541 P.2d 550, 552 (Ariz. 1975)). 1 “Malicious prosecution actions are not limited to suits against prosecutors but may be 2 brought, as here, against other persons who have wrongfully caused the charges to be 3 filed.” Awabdy, 368 F.3d at 1066; see also Henry, 2020 WL 8574831, at *8 (“Plaintiffs 4 must allege that a state or local official improperly exerted pressure, knowingly provided 5 misinformation to the prosecutor, concealed exculpatory evidence, or otherwise engaged 6 in wrongful or bad faith conduct that was actively instrumental in causing the initiation of 7 legal proceedings.” (citing Lacy v. City of Maricopa, 631 F. Supp. 2d 1183, 1195 (D. Ariz. 8 2008))). 9 Malicious prosecution is not a federal constitutional tort if state law provides a 10 remedy. Bretz, 773 F.2d at 1031. But there is an exception to this rule, allowing a plaintiff 11 to sustain a federal tort “when a malicious prosecution is conducted with the intent to 12 deprive a person of equal protection of the laws or is otherwise intended to subject a person 13 to a denial of constitutional rights.” Id. Thus, while Defendants are correct that Mosher 14 has not pleaded an equal protection violation, he has pleaded that his prosecution violated 15 his First Amendment right to free speech. (See Doc. 70 at 6 ¶ 71; Doc. 82 at 16.) And the 16 Ninth Circuit has recognized that First Amendment violations fit within the recognized 17 exception giving way to federal malicious prosecution claims. See Awabdy, 368 F.2d at 18 1070 (finding that the First, Thirteenth, and Fourteenth Amendments may provide a basis 19 for asserting a malicious prosecution claim under § 1983). Therefore, the Court rejects 20 Defendants’ argument that Mosher’s § 1983 malicious prosecution claim against the 21 Officers should be dismissed based upon a remedy existing under Arizona law. 22 The Court now addresses the presumption of prosecutorial independence. As noted, 23 malicious prosecution cases require a plaintiff to prove, in part, that the defendant initiated 24 a criminal prosecution without probable cause that terminated in his favor. Slade, 541 P.2d 25 at 552. And, in malicious prosecution cases, Federal law recognizes a rebuttable 26 presumption that “the prosecutor filing the complaint exercised independent judgment in 27 determining that probable cause for accused’s arrest exists at that time.” See Newman v. 28 County of Orange, 457 F.3d 991, 993 (9th Cir. 2006) (citing Smiddy v. Varney, 665 F.2d 1 261, 266–67 (9th Cir. 1981), overruled in part on other grounds by Hartman v. Moore, 547 2 U.S. 250 (2006)). To hold the arresting officers liable for malicious prosecution, a plaintiff 3 must overcome the presumption. See Smiddy, 655 F.2d at 266–67; see also Newman, 457 4 F.3d at 994–95 (citing Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994)); see also 5 Harper v. City of Los Angeles, 533 F.3d 1010, 1027–28 (9th Cir. 2008) (finding the plaintiff 6 overcame the presumption where trial testimony revealed that, among other things, 7 prosecutor worked “hand-in-hand” with investigating officers). 8 This presumption is most often considered at summary judgment or trial. See, e.g., 9 Dupris v. McDonald, 2012 WL 210722, *8 (D. Ariz. Jan. 24, 2012); Newman, 457 F.3d 10 at 996; Smiddy, 655 F.2d at 266–67. Thus, despite discussion of the presumption in the 11 briefing on this Motion, weighing whether Mosher has presented sufficient evidence to 12 rebut the presumption is premature. Cf. West v. City of Mesa, 128 F. Supp. 3d 1233, 1241 13 (D. Ariz. 2015) (denying a motion to dismiss a malicious prosecution claim based on the 14 presumption because “Plaintiff alleges [defendant] knowingly provided false evidence to 15 the prosecutor and engaged in other bad faith conduct during Plaintiff’s investigation.”). 16 Indeed, doing so would, in a way, require Mosher to offer evidence beyond what a 17 complaint requires, and thereby undermine a cornerstone of Rule 12 determination—to 18 accept the well-pled factual allegations as true and to construe them in the light most 19 favorable to the nonmoving party, Cousins, 568 F.3d at 1067. Accordingly, the Court will 20 not consider whether Mosher rebutted the presumption of prosecutorial independence at 21 this time. 22 Next, the Court addresses the issue of probable cause. To determine whether an 23 officer had probable cause to make an arrest, courts “examine the events leading up to the 24 arrest, and then decide whether these historical facts, viewed from the standpoint of an 25 objectively reasonable police officer, amount to probable cause. District of Columbia v. 26 Wesby, 583 U.S. 48, 57 (2018) (cleaned up). Probable cause “requires only a probability 27 or substantial chance of criminal activity, not an actual showing of such activity.” Illinois 28 v. Gates, 462 U.S. 213, 232 (1983). “Probable cause ‘is not a high bar.’” Wesby, 583 U.S. 1 at 57 (quoting Kaley v. United States, 571 U.S. 320, 338 (2014)). 2 Here, Mosher alleges that he followed law enforcement’s instructions to show his 3 hands, exit his vehicle, and lift his shirt to show that he did not have a weapon. (Doc. 70 4 at 3 ¶¶ 16–23.) In other words, Mosher’s allegations are that he unequivocally complied 5 with law enforcement commands, yet he was still shot with bean-bag rounds, tazed, and 6 arrested. (Id. ¶¶ 23–31.) Additionally, at the scene, law enforcement announced that 7 Mosher was not the target of the vehicle containment, and that the task force was present 8 to arrest Mosher’s acquaintance. (Doc. 70 at 2 ¶ 14.) Accepting these allegations as true, 9 Mosher could not reasonably be determined to be engaged in, or suspected to be engaged 10 in, criminal activity at the time of his arrest. See Gates, 462 U.S. at 232. Mosher alleges 11 that, after his arrest, the Officers fabricated the Reports to reflect that Mosher was an 12 “imminent risk of serious harm to officers,” and that information was then used to charge 13 and prosecute him for resisting arrest and obstructing government operations. (Id. at 4–5 14 ¶¶ 50–56.) The purpose of the fabricated Reports was to manufacture a criminal case 15 against him to waylay any potential civil rights case arising out of the Officers alleged 16 excessive force. (Id. at 5 ¶ 54.) And, as part of the Officers scheme, they gave false 17 information to the prosecution and Mosher’s criminal defense counsel. (Id. ¶ 56); cf. 18 Harper, 533 F.3d at 1027–28. Ultimately, according to Mosher, the Officers, knowing 19 there was no probable cause, acted with malice in falsifying documents to secure Mosher’s 20 prosecution to suppress his First Amendment right to free speech. (Id. at 6 ¶¶ 70–71); see 21 also Awabdy, 368 F.3d at 1066. At bottom, these facts, accepted as true, establish that the 22 Defendant Officers lacked probable cause both to arrest and to charge Mosher. See 23 Awabdy, 368 F.3d at 1066. 24 Defendants also contend that because the Mesa City Court judge found more than 25 sufficient evidence for Mosher’s case to proceed to a jury, probable cause existed for his 26 arrest and prosecution. (Doc. 75 at 10.) This argument is similar to one in West, in which 27 a defendant FBI agent argued a grand jury indictment should serve as conclusive evidence 28 of probable cause and thus bar a subsequent malicious prosecution claim. 128 F. Supp. 3d 1 at 1241. Therein, the Court also noted that “[t]he argument here is, in essence, that if a 2 conspiracy to lie is so successful that on the basis of the lies a grand jury finds probable 3 cause, the conspirators become immunized for the constitutional injury they have caused.” 4 Id. (quoting Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir. 1997)). Ultimately, the 5 Court refused to dismiss the plaintiff’s state law malicious prosecution claim because he 6 alleged that “the probable cause that served as the basis for his indictment was tainted by 7 the actions of [the FBI agents].” Id. (citing Harris, 126 F.3d at 1198 (“[A] finding of 8 probable cause that is tainted by the malicious actions of government officials . . . does not 9 preclude a claim against the officials involved.” (cleaned up))). Here, Mosher goes a step 10 further than alleging that any probable cause was tainted, and instead alleges that probable 11 cause simply did not exist. (See Doc. 70 at 6 ¶ 70.) Thus, like the grand jury indictment 12 in West, the Mesa City Court judge’s determination regarding Mosher’s criminal case’s 13 procession to a jury does not establish probable cause nor preclude Mosher’s claim. See 14 128 F. Supp. 3d at 1241. 15 In sum, in malicious prosecution cases, courts are generally concerned with whether 16 the operative complaint evinces probable cause. See Overson v. Lynch, 83 Ariz. 158, 161 17 (1957). If probable cause exists, it is an absolute defense to a suit for malicious 18 prosecution. McClinton v. Rice, 265 P.2d 425, 431 (Ariz. 1953). Here, based on 19 allegations in the SAC, probable cause to arrest and charge Mosher did not exist. 20 Therefore, the Court will not dismiss Counts II and VI. 21 B. Battery and Negligence (Counts IV and V) 22 Mosher alleges that the Officers’ actions make the City vicariously liable for battery 23 and negligence or gross negligence. (Doc. 70 at 7–8 ¶¶ 83–92.) Defendants contend that 24 these claims are barred by Ryan v. Napier, 425 P.3d 230 (Ariz. 2018) and Arizona Revised 25 Statute § 12-820.05. (Doc. 75 at 10–11.) In response, Mosher contends that Defendants 26 misinterpret Ryan and § 12-820.05, and that neither bar Mosher’s claims. (Doc. 82 at 4–6.) 27 Common law battery consists of an intentional act by one person that “results in 28 harmful or offensive conduct with the person of another.” Duncan v. Scottsdale Med. 1 Imaging, Ltd., 70 P.3d 435, 438 (Ariz. 2003) (citing Restatement (Second) of Torts §§ 13, 2 18 (1965)). A negligence claim requires proof of four elements: “(1) the existence of a 3 duty recognized by law requiring defendants to conform to a certain standard of care; (2) 4 defendants’ breach of that duty; (3) a causal connection between the breach and plaintiff[’s] 5 resulting injury; and (4) actual damages.” Delci v. Gutierrez Trucking Co., 275 P.3d 632, 6 634 (Ariz. Ct. App. 2012). The Arizona Supreme Court considered, and ultimately refused 7 to adopt, an amalgam of these two common law theories in Ryan. There, the plaintiff sued 8 an officer for “negligently releas[ing] [a police dog] and that use the dog constituted a 9 negligent, unjustified, and excessive use of force.” Ryan, 425 P.3d at 234 (quotation marks 10 omitted). The plaintiff also sued the Pima County Sheriff under a theory of vicariously 11 liability. Id. The Arizona Supreme Court held that “negligent use of intentionally inflicted 12 force” is not a cognizable claim under Arizona law. Id. at 236. The court explained that 13 the availability of such claim “could permit plaintiffs to ‘plead around’ statutory provisions 14 that apply only to intentional tort claims.” Id. at 237. The court did not, however, preclude 15 a plaintiff from pursuing a battery claim based upon intentional acts, or negligent hiring or 16 training claims against an employer. See id. at 238. Here, Mosher asserts a battery claim 17 against the City under a vicarious liability theory. (Doc. 70 at 7 ¶¶ 79–82.) Mosher also 18 asserts a separate, direct negligent hiring and supervision claim against the City. (Id. at 19 7–8 ¶¶ 83–87.) Therefore, because Mosher is not asserting a claim akin to the rejected 20 “negligent use of intentionally inflicted force” claim, Ryan is inapposite insofar as 21 Defendants rely on its holding to preclude Mosher from asserting his distinct claims for 22 battery and negligence. See 425 P.3d at 236. 23 Suing a public entity or employee for an intentional tort or negligence implicates 24 certain statutory immunity provisions and presumptions. See § 12-820.05(B); see also 25 Ariz. Rev. Stat. § 12-716(A)(1) (presuming a peace officer acted reasonably in the 26 intentional use of physical force); § 12-716(A)(2) (presuming the employer of the peace 27 officer to have reasonably hired and trained its officer to use that physical force). Under 28 § 12-820.05(B), “a public entity is immune from liability for damages caused by an 1 employee’s felony act unless the entity knew of the employee’s propensity to commit such 2 acts.” 3 Defendants argue that Mosher states the “[t]aser and bean bag deployments were 4 felony intentional acts.” (Doc. 75 at 13.) Although, upon review, no allegations in the 5 SAC, or argument in Mosher’s Response to the instant Motion, posit that the Officers’ 6 conduct was felonious.1 (See Doc. 70; Doc. 82.) Moreover, even if the Court found that 7 the Officers’ acts fell within the ambit of § 12-820.05(B), Mosher sufficiently alleges that 8 the City knew of the Mesa police forces’ propensity for the alleged excessive force, which 9 includes Officers Alexander and Wick. (See Doc. 70 at 8 ¶ 86); § 12-820.05(B); cf. 10 McGrath v. Scott, 250 F. Supp. 2d 1218, 1235 (D. Ariz. 2003) (finding that, “while, 11 Plaintiff neither explicitly alleges Scott’s propensity to comment felonious acts nor the 12 State’s knowledge of this propensity,” her allegations implicitly established defendant’s 13 propensity); Nees v. City of Phoenix, No. CV-21-01134, 2022 WL 17976422, at *6 (D. 14 Ariz. Dec. 28, 2022) (“Because Plaintiff does not allege that the City knew of Defendant 15 Cooke’s propensity, the material question is whether Defendant Cooke’s conduct amount 16

17 1 The Arizona Supreme Court has not expressly decided whether § 12-820.05 applies despite the absence of a criminal felony charge or conviction. However, the statute allows 18 the Court to make a felony determination in the first instance. See Cameron v. Gila County, 19 No. CV-11-00080-PHX-JAT, 2011 WL 2115657, at *4 (D. Ariz. May 26, 2011); see also Ryan, 425 P.3d at 237 (citing State v. Heinze, 993 P.2d 1090, 1094 (Ariz. Ct. App. 1999) 20 (“[I]nterpreting § 41-621(L), which has language similar to § 12-820.05(B), and 21 concluding that a felony conviction is not a prerequisite to the application of the felony exclusion.”)); see also Rand v. City of Glendale, No. 1 CA-CV 07-0722, 2008 WL 22 5383363, at *6 (Ariz. Ct. App. Dec. 26, 2008) (finding “a felony conviction [was] not a 23 prerequisite to application of the immunity provided by A.R.S. § 12-820.05” and that “the trial court did not err in determining that [] claims for battery and false arrest/imprisonment, 24 as alleged in [the] complaint . . ., set forth conduct that would, if proven, constitute a felony under Arizona law”); Fernandez v. City of Phoenix, CV-11- 02001-PHX-FJM, 2012 WL 25 2343621, at *3 (D. Ariz. Jun. 20, 2012); Cameron, 2011 WL 2115657, at *4; Al-Asadi v. 26 City of Phoenix, No. CV-09-00047-PHX-DGC, 2010 WL 3419728, at *5 (D. Ariz. Aug. 27, 2010); McGrath v. Scott, 250 F. Supp. 2d 1218, 1234 (D. Ariz. 2003); See Link v. Pima 27 County, 972 P.2d 669, 675 (Ariz. Ct. App. 1998) (noting that immunity should be 28 determined “at the earliest possible stage in litigation” (citing Hunter v. Bryant, 502 U.S. 224, 227 (1991))). 1 to a ‘criminal felony.’” (emphasis added)). Thus, the allegations, accepted as true, would 2 overcome the statutory immunity bar in § 12-805.05(B). Additionally, the allegations 3 would satisfy the required elements of battery as Mosher alleges that the Officers 4 intentionally used unjustified force against him when they employed bean-bag rounds and 5 a taser, resulting in several injuries. (See Doc. 70 at 3 ¶¶ 23–30, 5 ¶¶ 60–62, 7 ¶¶ 79–82.) 6 At bottom, Mosher has sufficiently pleaded facts to allow his battery claim against the City 7 to proceed. See Duncan, 70 P.3d at 438. 8 Section 12-820.05 also applies to negligent training and supervision claims. See 9 Gallagher v. Tucson Unified Sch. Dist., 349 P.3d 228, 230–31 (Ariz. Ct. App. 2015) 10 (applying § 12-820.05 to a negligent hiring and supervision claim); Nees, 2022 WL 11 17976422, at *6 n.5 (same). As discussed, even if the Court found the Officers’ acts were 12 felonious, Mosher has sufficiently alleged the City’s knowledge of the Officers’ propensity 13 for such acts. Therefore, Mosher’s allegations would overcome the immunity bar imposed 14 under § 12-805.05(B) as it applies to his negligent training and supervision claim. Thus, 15 the remaining inquiry for the Court is simply whether Mosher has sufficiently pleaded his 16 negligence claim. 17 Defendants did not initially challenge the sufficiency of Mosher’s negligence 18 allegations, but in their Reply brief assert that a direct negligence claim against the City 19 ought to fail because Mosher only offers generalized, cursory allegations. (Doc. 84 at 8.) 20 For a negligent supervision claim, “the plaintiff must allege that an employee committed a 21 tort, that the defendant employer had a reason and opportunity to act, and that the defendant 22 failed to perform its duty to supervise.” Kuehn v. Stanley, 91 P.3d 346, 352 (Ariz. Ct. App. 23 2004). To state a claim for negligent training, a plaintiff must allege facts regarding the 24 training that a defendant's employees received and showing that a defendant's training or 25 lack thereof was negligent. Perry v. Arizona, CV-15-01338-PHX-DLR, 2016 WL 26 4095835, at *2 (D. Ariz. Aug. 2, 2016) (citing Cotta v. County of Kings, 27 1:13-cv-00359-LJO-SMS, 2013 WL 3213075, at *16 (E.D. Cal. June 24, 2013) (dismissing 28 negligent training and supervision claim where complaint did not allege facts regarding the 1 training of prison personnel)). 2 Defendants rely, in part, on in Davis v. City of Glendale, No. CV-23-00016-PHX- 3 DWL, 2023 WL 5333259, *7 (D. Ariz. Aug. 18, 2023), wherein the Court found the 4 allegations for a negligent hiring claim “wholly conclusory” and “broad, boilerplate 5 allegations entirely lacking specificity.” Those allegations included claims that the 6 defendant City:

7 [N]egligently hired, trained, supervised and/or retained the officers involved 8 in the subject incident by:

9 a. Implementing, maintaining and tolerating policies, practices and customs 10 which contributed to the illegal and negligent actions of the officers . . . ;

11 b. Hiring the officers without reasonably investigating or adequately 12 determining their propensity for the type of improper conduct which they committed against Plaintiff . . . ; 13

14 c. Failing to adequately train or supervise the officers . . . ;

15 d. Failing to adequately discipline, demote and/or terminate the officers for 16 any improper conduct prior to the incident at issue . . . [.] 17 Id. Here, Mosher alleges that the City owed him a duty of care, the City breached that duty 18 by failing to adequately train or supervise officers like Alexander and Wick, and as a result, 19 the Officers used unreasonable, excessive force on him. (Doc. 70 at 7–8 ¶¶ 83–87.) 20 Mosher also alleges that the City knew that officers, like Alexander and Wick, who worked 21 on their task force repeatedly used excessive force. (Doc. 70 at 8 ¶ 86.) Unlike the 22 complaint in Davis, Mosher’s allegations name the specific officers the City failed to train, 23 identifies the task forces in which they work, and identifies the execution of the vehicle 24 containment technique as an example of where the City has fallen short. Cf. Davis, 2023 25 WL 5333259, at *7; Baker v. Tevault, No. CV 20-01960-PHX-JAT (JZB), 2021 WL 26 1171492, *8 (D. Ariz. 2021) (dismissing a negligent hiring claim where the complaint was 27 “devoid of any factual bases plausibly supporting the assertions of multiple prior violations 28 . . . [and] no facts from which to infer that the City knew of and negligently failed to address || [the issue]”) In short, accepting the allegations in the SAC as true, Mosher has put forth 2|| sufficient factual basis to establish his negligent hiring or supervision claim. IV. CONCLUSION 4 Accordingly, 5 IT IS HEREBY ORDERED granting in part and denying in part Defendants’ 6|| Motion to Dismiss (Doc. 75). 7 IT IS FURTHER ORDERED dismissing Count III of Plaintiff’s Second Amended 8 || Complaint with prejudice. 9 Dated this 9th day of December, 2024. 10 = . 11 SO ts A lonorable Susan M. Brnovich United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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