Neeley v. Arizona, State of

• Court: District Court, D. Arizona
• Decided: January 5, 2022
• Docket: 2:19-cv-05899
• Status: Unknown

Opinion

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

9 Austin Neeley, et al., No. CV-19-05899-PHX-DJH

10 Plaintiffs, ORDER

11 v.

12 State of Arizona, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Dismiss Plaintiffs’ Second 16 Amended Complaint (Doc. 111). Plaintiffs Austin Neeley1, Brittany Robinette, V.S.R., 17 A.L.N., and A.R.N. (“Plaintiffs”) have filed a Response in opposition (Doc. 113), and 18 Defendants filed a Reply (Doc. 115). 19 I. Background 20 This case stems from the removal of Plaintiffs V.S.R., A.L.N., and A.R.N. from 21 their home by Arizona Department of Child Safety (“DCS”) employees and the subsequent 22 juvenile protection proceedings. (Doc. 105 at ¶ 38). On June 15, 2021, Plaintiffs filed 23 their Second Amended Complaint (“SAC”), alleging 15 claims against various Defendants, 24 including DCS and several of its employees, the State of Arizona, and spouses of several 25 Defendants. (Id. at ¶¶ 14–31). 26 Counts 1–4, 11, and possibly 122 involve claims for 42 U.S.C. §1983 violations.

27 1 Mr. Neeley is the biological father of A.L.N. and A.R.N., but not V.S.R. (Doc. 105 at ¶ 36). 28 2 Count 12, styled as a Due Process claim, does not specify if it arises under the Arizona or 1 (Doc. 105). Count 15 involves a civil conspiracy claim under 42 U.S.C. § 1985(3). (Id.) 2 Counts 5–10, and 14 involve various claims of state law violations. (Id.) Count 13 involves 3 “Monell-related claims” against DCS. (Id.) 4 Defendants move to dismiss Counts 5–10, 14, and 15 with prejudice for failing to 5 file a timely notice of claim as required by Arizona’s Notice of Claim Statute, A.R.S. § 12- 6 820.01. (Doc. 111 at 2). Defendants contend these causes of action undisputedly accrued 7 more than 180 days ago, and therefore the dismissal should be with prejudice because any 8 further amendment would be futile. (Id.) Defendants also move to dismiss DCS as a 9 Defendant. (Id.) 10 II. Legal Standards 11 A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a 12 complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199–1200 (9th Cir. 2003). A complaint 13 need not contain detailed factual allegations to avoid a Rule 12(b)(6) dismissal; it simply 14 must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 15 550 U.S., at 570. “A complaint has facial plausibility when the plaintiff pleads factual 16 content that allows the court to draw the reasonable inference that the defendant is liable 17 for the misconduct alleged.” Iqbal, 556 U.S., at 678 (citing Twombly, 550 U.S. at 556). 18 “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more 19 than a sheer possibility that defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 20 (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a 21 defendant’s liability, it ‘stops short of the line between possibility and plausibility of 22 entitlement to relief.’” Id. (citation omitted). 23 In addition, the Court must interpret the facts alleged in the complaint in the light 24 most favorable to the plaintiff, while also accepting all well-pleaded factual allegations as 25 true. Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). That rule does not apply, 26 however, to legal conclusions. Iqbal, 556 U.S. at 678. A complaint that provides “labels 27 and conclusions” or “a formulaic recitation of the elements of a cause of action will not 28 the United States Constitution. This is one of the many vagaries in Plaintiffs’ Complaint. 1 do.” Twombly, 550 U.S. at 555. Nor will a complaint suffice if it presents nothing more 2 than “naked assertions” without “further factual enhancement.” Id. at 557. 3 III. Analysis 4 A. Plaintiff Robinette’s State Law Claims 5 At the outset, Plaintiffs concede that the time to file a NOC has expired for any state 6 claims brought by Plaintiffs Mr. Neeley and Ms. Robinette for damages resulting from 7 minor Plaintiffs A.L.N. and A.R.N.’s removals.3 (Doc. 33 at 3). Counts 5–10, and 14, 8 brought by Plaintiffs Mr. Neeley and Ms. Robinette for damages resulting from minor 9 Plaintiffs A.L.N. and A.R.N., are therefore dismissed.4 In their Response, Plaintiffs only 10 argue that Plaintiff Brittany Robinette’s (“Plaintiff Robinette”) state law claims are timely.5 11 (Doc. 113). The Court will accordingly focus on when Plaintiff Robinette’s state law 12 claims pertinent to V.R.S. accrued. 13 In that regard, Plaintiff Robinette’s state law claims are as follows: 14 i. Count 5—Abuse of Process 15 Plaintiff Robinette argues Ms. Bennett, Ms. McGlynn, Ms. Ashmore, Ms. Mitchum, 16 Ms. Cooper, and/or Ms. Janowitz committed abuse of process “when they refused to return 17 V.S.R., A.L.N., and A.R.N. to the custody of Mr. Neeley and/or Ms. Robinette even though 18 they knew there was no probable cause to continue to detain those children.” (Doc. 105 at 19 ¶ 227). She further claims Defendants “used the court process to keep V.S.R., A.L.N., and 20 A.R.N away from their parents in a fashion inconsistent with the legitimate litigation goal 21 of protecting children.” (Id. at ¶ 228). Plaintiff Robinette then raises specific allegations 22 against Ms. Ashmore, arguing she “continu[ed] the judicial process in a fashion 23 inconsistent with the legitimate litigation goal of protecting children when she told Mr.

24 3 Although Plaintiffs stated they “intend to delete those claims from an amended complaint, and/or voluntarily dismiss them pursuant to FRCP 41,” they have not done either. Indeed, 25 Plaintiffs’ SAC still incorporates these allegations. (Doc. 105).

26 4 In the future, when the parties reach agreement on the viability or non-viability of claims, they are directed to promptly file a stipulation to dismiss and/or seek leave to amend the 27 operative pleadings.

28 5 The Response was filed by “Plaintiffs” but the claims at issue here concern only Plaintiff Robinette. 1 Neeley, Ms. Robinette, and Ms. Dale that the judge and the State’s attorney were not in 2 charge of what happened to the children, but that she was.” (Id. at ¶ 229). She further 3 argues Ms. Ashmore acted “in a fashion inconsistent with the legitimate litigation goal of 4 protecting children when she told Mr. Neeley, Ms. Robinette, and Ms. Dale that V.S.R., 5 A.L.N., and A.R.N. would have been returned home sooner if Mr. Neeley and Ms. 6 Robinette had not retained private counsel.” (Id. at ¶ 230). Thus, Plaintiff Robinette argues 7 “[a]s a direct and proximate result of Ms. Bennett, Ms. McGlynn, Ms. Ashmore, Ms. 8 Mitchum, Ms. Cooper, and/or Ms. Janowitz’s abuse of process, Plaintiffs suffered and will 9 continue to suffer general and special damages in an amount not yet ascertained but which 10 shall be shown according to proof at trial.” (Id. at ¶ 231). 11 ii. Count 6—Gross Negligence re: Preserving Family 12 Plaintiff Robinette argues Ms. Bennett, Ms. McGlynn, Ms. Ashmore, Ms. Mitchum, 13 Ms. Cooper, and Ms. Janowitz committed gross negligence in carrying out their duty to 14 make reasonable efforts to preserve the family relationship when they failed to provide 15 information to Ms. Robinette and Mr. Neeley prior to the November 3, 2016, dependency 16 hearing. (Id. at ¶ 234). She further claims Defendants committed gross negligence when 17 (1) “they provided Ms. Robinette and Mr. Neeley with only one visit with A.L.N. and 18 A.R.N. during the first ninety (90) days after the children were seized; (2) when they 19 refused to provide visitation between Ms. Robinette and V.S.R. during the first 198 days 20 after V.S.R. was seized; (3) when they failed to provide any reunification services until six 21 (6) months after the children were seized. (Id. at ¶¶¶ 235, 236, 237). 22 She also argues Defendants committed gross negligence when (1) “they consistently 23 attempted to prevent or halt visitation between Ms. Robinette and V.S.R., resulting in 24 V.S.R. only seeing her mother for 69.5 hours over the 1,082 days that V.S.R. was in State 25 custody. V.S.R. was restricted from seeing her mother without good cause for a total of 26 925 days while she was in State custody; (2) when they consistently attempted to prevent 27 or halt visitation between A.L.N., A.R.N, and V.S.R. without good cause; (3) lied to the 28 court regarding the status of the case and the status of Mr. Neeley’s and Ms. Robinette’s 1 progress and/or psychological evaluations.” (Id. at ¶¶¶ 238, 239, 240). Thus, Plaintiff 2 Robinette contends “[a]s a direct and proximate result of Ms. Bennett’s, Ms. McGlynn’s, 3 Ms. Ashmore’s, Ms. Mitchum’s, Ms. Cooper’s, and Ms. Janowitz’s breach of their duty of 4 care, Plaintiffs suffered irreparable harm and will continue to suffer general and special 5 damages in an amount not yet ascertained but which shall be shown according to proof at 6 trial.” (Id. at ¶ 241). 7 iii. Count 7—Gross Negligence re: Legal Rights of Children and Family 8 Because these allegations are identical to the allegations above, the Court will not 9 restate them. 10 iv. Count 8—Intentional Infliction of Emotional Distress 11 Plaintiff Robinette argues Ms. Ashmore, Ms. Cooper, Ms. Thomas, and/or Dr. De 12 Soler committed intentional infliction of emotional distress when they kept V.S.R. from 13 Ms. Robinette “for extended periods of time, including two periods of almost a year, either 14 without visitation or with only one visit.” (Id. at ¶ 253). She further claims Ms. Ashmore 15 and/or Ms. Thomas “both acted with either intent to cause emotional distress or recklessly 16 disregarded the near certainty that such distress would result from their conduct when they 17 (1) restricted visits between V.S.R. and her family, even though they knew that V.S.R. 18 became so upset after her visits with Ms. Robinette were suspended that V.S.R.’s foster 19 family called the police due to V.S.R.’s behavior [and] when they restricted V.S.R.’s visits 20 with Ms. Robinette, A.L.N., and A.R.N., even though they knew that V.S.R. feared her 21 family members were dead when the visits were restricted. (Id. at ¶¶ 254, 255). 22 She also argues Ms. Cooper, and/or Dr. De Soler committed intentional infliction 23 of emotional distress “when they knew that V.S.R.’s psychological hospitalization was a 24 direct result of their decision to restrict V.S.R. from visiting with Ms. Robinette and A.L.N. 25 and A.R.N., but yet they intentionally persisted in denying V.S.R. visitation or contact with 26 Ms. Robinette for numerous extended periods of time, up to a year at a time.” (Id. at ¶ 27 257). Finally, she alleges Rose Blackburn and Deloria Blackburn committed intentional 28 infliction of emotional distress “when they inculcated in V.S.R., among other false facts 1 and narratives, the false narrative that V.S.R. was sexually abused by Plaintiff Neeley in 2 order to alienate V.S.R. from her family and support a cessation and/or denial of visitation 3 with her family, and/or a change in the placement plan from family reunification to 4 severance and adoption so that they could adopt V.S.R. (Id. at ¶ 258). Plaintiff alleges 5 “V.S.R. continued to suffer such severe emotional distress from the actions of Ms. 6 Ashmore, Ms. Thomas, Ms. Cooper, Rose Blackburn and Deloria Blackburn, and/or Dr. 7 De Soler that in February 2019, it was thought V.S.R. would have to be institutionalized.” 8 (Id. at ¶ 260). 9 Thus, Plaintiff Robinette contends “[a]s a direct and proximate result of Ms. 10 Bennett’s, Ms. Ashmore’s, Ms. Cooper’s, Ms. Thomas’s, Rose Blackburn and Deloria 11 Blackburn’s, and/or Dr. De Soler’s actions, V.S.R. suffered irreparable harm and will 12 continue to suffer general and special damages in an amount not yet ascertained but which 13 shall be shown according to proof at trial.” (Id. at ¶ 262). 14 v. Count 9—Medical Malpractice 15 Plaintiff Robinette argues Ms. Thomas and/or Dr. De Soler6 committed medical 16 malpractice when “they failed to provide the minimum accepted standard of care in their 17 treatment of V.S.R.” (Id. at ¶ 265). Plaintiff Robinette thus contends “[a]s a direct and 18 proximate result of Ms. Thomas’s, and/or Dr. De Soler’s failure to satisfy the minimum 19 accepted standard of care, V.S.R. suffered irreparable harm and will continue to suffer 20 general and special damages in an amount not yet ascertained but which shall be shown 21 according to proof at trial.” (Id. at ¶ 266). 22 vi. Count 10—Negligent Hiring, Training, Supervision, and Retention 23 Plaintiff Robinette argues Defendants State of Arizona, McKay, Grossman & 24 Grossman, Ltd., and Dr. Heather De Soler, PLLC were negligent in hiring, training, 25 supervising, and retaining employees. (Id. at ¶ 269). She argues Defendants State of 26 Arizona and McKay “owed a duty to Plaintiffs to ensure their employees, officers, and

27 6 According to A.R.S. § 12-561, a medical malpractice claim in Arizona can only be brought against a licensed health care provider. In Count 9, Plaintiff Robinette names Ms. 28 Thomas and Dr. De Soler. The Court notes, however, that this claim only applies to Ms. Thomas if she qualifies as a licensed health care provider. 1 agents were qualified to serve in their respective roles before hiring and assigning 2 employees to act as investigators and/or case managers for DCS [and] to ensure that their 3 employees, officers, and agents were properly trained and possessed the skill and 4 knowledge to perform their assigned job tasks in a competent manner.” (Id. at ¶ 268, 269). 5 She makes the same arguments against Defendants Grossman & Grossman and Dr. 6 Heather De Soler, PLLC, who were under contract with DCS. (Id. at ¶ 270–273). 7 Thus, Plaintiff Robinette contends, “[a]s a direct and proximate result of 8 Defendants’ breaches of these duties, Plaintiffs were damaged in that they, among other 9 things, were denied their constitutionally protected individual and familial rights thereby 10 suffering damages from the loss of familial relationships for extended periods of time 11 during formative times in the lives of the children and the family, and Plaintiffs will 12 continue to suffer such damages into the future, all in an amount that will be demonstrated 13 at trial.” (Id. at ¶ 275). 14 vii. Count 14—Civil Conspiracy 15 Plaintiff Robinette alleges DCS Defendants, Ms. Thomas, and the Blackburns 16 committed civil conspiracy when they “me[]t, conferred, and/or communicated on a regular 17 basis regarding V.S.R.’s placement and changing the placement plan from reunification to 18 severance and adoption, including without limitation, agreeing on a plan to inculcate in 19 V.S.R. negative and false facts and narratives regarding her mother and Defendant Neeley. 20 (Id. at ¶ 306). She further claims “Ms. Thomas allowed the Blackburns to be present at 21 and participate in therapeutic counseling of V.S.R. in their foster home in furtherance of 22 their agreement to facilitate a change in placement objectives from family reunification to 23 severance and adoption [and] the DCS Defendants kept the Blackburns informed of 24 services and juvenile court proceedings which the juvenile court specifically instructed the 25 Blackburns were to not be informed about, all in furtherance of the agreement to facilitate 26 a change in placement objectives from family reunification to severance and adoption.” 27 (Id. at ¶¶ 307, 308). 28 She also argues Defendants Bennett, McGlynn, Ashmore, Mitchum, Cooper, and 1 Janowitz “either singularly or jointly acted, and/or conspired, to deliberately or recklessly 2 present false statements and/or omit known exculpatory omissions material in the juvenile 3 dependency petition, reports, and/or motions filed in the Juvenile Court. This deceptive 4 conduct caused V.S.R.’s, A.L.N.’s and A.R.N.’s continued and prolonged detention from 5 their parents care, custody, and/or control.” (Id. at ¶ 309). Specifically, she alleges 6 “Defendants represented to the juvenile court that Plaintiffs Neeley and Robinette were 7 under police investigation for child abuse long after the Apache Junction Police 8 Department had closed its investigation and “cleared” the parents of criminal suspicion 9 without referring any criminal charges of child abuse against them in order to justify the 10 State’s motion to continue its physical custody of the minor Plaintiffs. Similarly, but also 11 without limitation, Defendants Bennett, McGlynn, Ashmore, Mitchum, Cooper, Janowitz, 12 and each of them, continued to file documents with the juvenile court asserting that Plaintiff 13 Neeley had sexually abused V.S.R. long after both polygraph and psychosexual testing 14 confirmed that Plaintiff Neeley had not sexually abused V.S.R. as a means of preventing 15 the swift reunification of this family and as a means of preventing, stopping, and/or 16 delaying parental visitations with V.S.R.” (Id. at ¶ 310). 17 Thus, Plaintiff Robinette contends “[t]he acts alleged herein constitute a civil 18 conspiracy in that two or more of the Defendants knew of the State’s obligation to reunite 19 this family, of the juvenile court’s order to not inform the Blackburn’s of ongoing therapy 20 objectives and juvenile court proceedings, among other things, and all agreed to take 21 actions to facilitate a change of placement objectives from family reunification to 22 severance and adoption – the underlying torts being negligent failure to protect, negligence 23 per se, and intentional infliction of emotional distress. (Id. at ¶ 311). 24 In their Motion, Defendants argue Plaintiff Robinette’s state law claims accrued— 25 at the latest—on September 13, 2019, when V.S.R. was returned to Plaintiff Robinette’s 26 care, because at that time she was on notice of Defendants’ alleged harms. (Doc. 111 at 27 6). Defendants thus argue that the last day for Plaintiff Robinette to have filed a timely 28 NOC was on or before March 11, 2020, making Plaintiff Robinette’s June 15, 2020 NOC 1 untimely. (Doc. 111 at 6–7 (citing Doc. 113-2 at 2)). Defendants also argue that Plaintiff 2 Robinette failed to even file her notice of claim prior to filing this lawsuit, thereby 3 undermining the very purpose of the NOC statute. (Doc. 111 at 5). 4 In response, relying on McDonough v. Smith, 139 S. Ct. 2149 (2019), Plaintiff 5 Robinette alleges that none of the state law claims accrued until V.S.R.’s dependency 6 proceedings ended on January 29, 2020. (Doc. 113 at 6). Because she filed her NOC on 7 June 15, 2020, Plaintiff Robinette argues she was within the 180-day deadline. (Id.) 8 Plaintiff Robinette further contends the filing of an amended complaint resets the time for 9 proper filing of a NOC and thus the claims should not be dismissed because the lawsuit 10 was filed before the NOC. (Doc. 113 at 7). She argues Defendants ignore that Plaintiff 11 Robinette filed both the First Amended Complaint (Doc. 47) (“FAC”) and the SAC after 12 serving their NOC on June 15, 2020. (Id.) 13 In their Reply, Defendants counter that Plaintiff Robinette failed to provide any 14 authority to support the contention that an amended complaint resets the time to file a NOC, 15 and that the amended complaints “relate back to the original Complaint and therefore are 16 not properly supported by the required notice of claim.” (Doc. 115 at 3). 17 The Court will address each of these arguments in turn. 18 B. Notice of Claim 19 Arizona law requires that before filing a lawsuit alleging state law causes of action 20 against a public entity, school, or employee, a plaintiff must individually serve each public 21 defendant with a notice of claim (“NOC”) within 180 days of when the cause of action 22 accrued. See A.R.S. § 12-821.01(A); Harris v. Cochise Health Sys., 160 P.3d 223, 230 23 (Ariz. Ct. App. 2007) (“When a person asserts claims against a public entity and a public 24 employee, the person ‘must give notice of the claim to both the employee individually and 25 his employer.’”) (quoting Crum v. Super. Ct., 922 P.2d 316, 317 (Ariz. Ct. App. 1996)). 26 “The purpose of the statute is to allow the entity and employee the opportunity to 27 investigate and assess their liability, to permit the possibility of settlement prior to litigation 28 and to assist the public entity in financial planning and budgeting.” Crum, 922 P.2d at 351. 1 Here, the issue of whether Plaintiff Robinette’s7 claims are timely turns on when the 2 various causes of action accrued. “A cause of action accrues when the damaged party 3 realizes he or she has been damaged and knows or reasonably should know the cause, 4 source, act, event, instrumentality or condition which caused or contributed to the damage.” 5 A.R.S. § 12-821.01(B). In Arizona, the term “accrual” is construed in accordance with the 6 common law discovery rule, which “provides that a cause of action accrues when a plaintiff 7 discovers or reasonably should have discovered the injury was caused by the defendant’s 8 [tortious] conduct.” Stulce v. Salt River Project Agric. Improvement & Power Dist., 3 P.3d 9 1007, 1010 (Ariz. Ct. App. 1999). “It is not enough that a plaintiff comprehends the ‘what’; 10 there must also be a reason to connect the ‘what’ to a particular ‘who’ in such a way that a 11 reasonable person would be on notice to investigate whether the injury might result from 12 fault.” Walk v. Ring, 44 P.3d 990, 996 (Ariz. 2002). 13 C. Accrual of Claims 14 Generally, accrual is a factual question for the jury to determine and cannot be 15 decided as a matter of law. Humphrey v. State, 466 P.3d 368, 375 (Ariz. Ct. App. 2020). 16 The rule does not apply, however, when there is no genuine dispute as to the facts showing 17 the plaintiff knew or should have known the basis for the claim, such as the case here. Id. 18 The Court will therefore address Plaintiff Robinette’s argument that regardless of the 19 discovery rule, the Court should find that the statute of limitations for her state law claims 20 started only after V.S.R.’s dependency proceedings concluded. 21 i. McDonough v. Smith 22 Plaintiff Robinette cites McDonough v. Smith to support her contention that the state 23 law claims did not accrue until V.S.R.’s dependency proceedings ended on January 29, 24 2020. 139 S. Ct. at 2158. In McDonough, the plaintiff brought a claim for malicious 25 prosecution under § 1983 against various defendants. Id. at 2149. The Court held the 26 statute of limitations for plaintiff’s fabricated-evidence claim “began to run when the 27 criminal proceedings against him terminated in his favor . . . not when the evidence was

28 7 A.R.S. § 12-821.01(A) does not apply to minors. See A.R.S. § 12-821.01(D). 1 used against him.” (Id.) According to the Court, if the claim accrued at any other time, it 2 “would impose a ticking limitations clock on criminal defendants as soon as they become 3 aware that fabricated evidence has been used against them.” Id. at 2158. “Such a rule,” 4 the Court noted, “would create practical problems in jurisdictions where prosecutions 5 regularly last nearly as long as—or even longer than—the relevant civil limitations period.” 6 Id. The Court found “[a] significant number of criminal defendants could face an untenable 7 choice between (1) letting their claims expire and (2) filing a civil suit against the very 8 person who is in the midst of prosecuting them.” Id. Accordingly, the Court held the 9 plaintiff’s fabricated-evidence claim began to run when the criminal proceedings 10 terminated in his favor, not when he acquired the requisite knowledge of when the evidence 11 was used against him, thereby creating an exception to the general discovery rule. 12 The policy underlying the exception recognized in McDonough, however, does not 13 apply here. Filing a NOC is different from filing a fabricated-evidence claim—the first 14 simply puts a defendant on notice of a potential lawsuit and gives the prospective 15 defendants a chance to assess the alleged claims, whereas the second initiates an actual 16 lawsuit challenging the integrity of the proceedings. Thus, the deterrent of “filing a civil 17 suit against the very person who is in the midst of prosecuting” the case is not present; 18 indeed, the reasons for requiring a timely NOC are in part so that the public entity can 19 investigate the claim and possibly reach a settlement before litigation even commences. 20 See Crum 922 P.2d at 351. In other words, the policy reasons against forcing defendants 21 to timely sue their prosecutors in the middle of a criminal trial are wholly different from 22 the policy reasons behind filing a timely NOC. The Court therefore finds McDonough 23 inapplicable. 24 Furthermore, Plaintiff Robinette offers no facts suggesting she did not have 25 knowledge of the state law claim allegations prior to V.S.R.’s return. The factual 26 allegations contained in each of her preceding state law counts concern harms that occurred 27 before V.S.R.’s return. For example, in Count 6, Plaintiff Robinette raises allegations 28 regarding “the first ninety (90) days after the children were seized” and “during the first 1 198 days after V.S.R. was seized” and Defendants’ failure “to provide any reunification 2 services until six (6) months after the children were seized.” (Doc. 105 at ¶¶¶ 235, 236, 3 237). Likewise, in Count 8, Plaintiff Robinette’s allegations regarding V.S.R.’s emotional 4 distress occurred in “February 2019, [when] “it was thought V.S.R. would have to be 5 institutionalized.” (Id. at ¶ 260). Still more, in Count 14, Plaintiff Robinette’s civil 6 conspiracy allegations stem from the alleged false representations Defendants made to the 7 juvenile court regarding the Apache Junction Police investigation and Mr. Neeley’s alleged 8 sexual abuse of V.S.R. (Id. at ¶ 310). While Count 14 does not contain dates, the Court 9 found elsewhere in the Complaint the alleged false statements Defendants made about the 10 police investigation and Mr. Neeley’s alleged sexual abuse occurred on or around 11 December 13, 2016, and July 11, 2017, respectively. (Id. at ¶¶ 66, 84). 12 Nowhere in the SAC does Plaintiff Robinette allege she did not realize Defendants 13 committed the alleged harms until after the dependency proceedings ended. To the 14 contrary, Plaintiff Robinette knew about the conduct during those proceedings and knew 15 of the government actors involved. The dependency proceedings did not need to be 16 terminated before Plaintiff Robinette could reasonably assess the appropriateness of 17 Defendants’ false statements and omissions in their motions filed in Juvenile Court. 18 Where, as here, there are no facts in dispute regarding the discovery of claims, the Court 19 may dismiss them as untimely.8 Humphrey, 466 P.3d at 375; see also Scoins v. Goddard, 20 2007 WL 2807755, at *5 (D. Ariz. Sept. 25, 2007) (finding plaintiff “realized she had been 21 injured by the defendants as soon as she lost custody of her children” and therefore 22 plaintiff’s failure to comply with A.R.S. § 12–821.01 barred plaintiff’s state law claims); 23 Grundemann v. Paradise Valley Unified Sch. Dist. No. 69, 2012 WL 12950086, at *6 (D. 24 Ariz. Jan. 26, 2012) (“[a] plaintiff need not know all the facts underlying a cause of action 25 to trigger accrual but must know that a wrong occurred and caused the injury.”). 26 … 27 8 Although the Court granted Plaintiffs’ unopposed request for a stay (Doc. 37) and ordered 28 them to file their notice of claim on or before June 15, 2020, this does not preclude the Court from finding noncompliance with A.R.S. § 12-821.01(A)’s statutory requirements. 1 ii. Filing of Amended Complaint 2 Plaintiff Robinette also argues she filed her FAC and SAC after the NOC filing on 3 June 15, 2020. (Doc. 113 at 7). Thus, she argues, even if A.R.S. § 12-821.01 requires that 4 notice be served prior to the filing of a complaint, the FAC and the SAC both superseded 5 and replaced the original complaint and were filed after Plaintiff Robinette’s NOC. (Id.) 6 Regardless, the Court finds this alone does not remedy Plaintiff Robinette’s NOC time bar 7 because Plaintiff Robinette failed to file the NOC within 180 days of when the causes of 8 action accrued. Therefore, Plaintiff Robinette’s state law claims will be dismissed as to all 9 Defendants. 10 D. Plaintiffs’ Claims Against DCS 11 Defendants also seek to dismiss DCS from this action. Defendants raise two 12 arguments regarding DCS. First, Defendants argue DCS is a non-jural entity which cannot 13 be sued and should be dismissed. Second, Defendants argue DCS is not a “person” under 14 § 1983 and is not a “municipality” for the purpose of Plaintiffs’ Monell-related claims. 15 i. DCS Status as Non-Jural Entity 16 Defendants first argue DCS is a non-jural entity under Arizona law and thus cannot 17 be sued. (Doc. 111 at 7). Plaintiffs raised no arguments in their response that DCS is a 18 distinct legal entity that can be sued under state law, and therefore the Court finds the non- 19 jural status of the agency is undisputed. In Arizona, a plaintiff may sue a government entity 20 only if the state legislature has granted that entity the power to sue or be sued. Schwartz v. 21 Superior Court, 925 P.2d 1068, 1070 (Ariz. Ct. App. 1996). The statutory provisions 22 under which the legislature created DCS contain no such powers. See A.R.S. §§ 8-451–8- 23 892. Therefore, DCS may not be sued, and the state law claims against it are dismissed 24 with prejudice. See East v. Arizona, 2017 WL 6820141, at *2 (D. Ariz. Aug. 23, 2017). 25 ii. § 1983 Claims Against DCS 26 Defendants next argue DCS is a department of the state and not a person within the 27 meaning of § 1983. (Doc. 111 at 8). They assert § 1983 claims may not be brought against 28 state agencies and state officials sued in their official capacities. (Id.) They further allege 1 Plaintiffs’ Monell claims are groundless because DCS is not a “municipality” or “local 2 governing body.” (Id. at 9). The Court agrees. 3 Under § 1983, “[e]very person who, under color of [law] . . ., subjects, or causes to 4 be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, 5 or immunities secured by the Constitution and the laws, shall be liable to the party injured.” 6 42 U.S.C. § 1983 (emphasis added). The Supreme Court has ruled, however, that a lawsuit 7 against a state official acting in his or her official capacity is “a suit against the State itself.” 8 Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). A state or state agency is not 9 a “person” within the meaning of § 1983 and therefore is not subject to money damages in 10 lawsuits alleging § 1983 violations. Id. at 58. 11 Plaintiffs argue DCS is a local governing body, which executed a policy that 12 inflicted the injury alleged in the SAC. (Doc. 113 at 8). They argue under Monell “when 13 execution of a government’s policy or custom, whether made by its lawmakers or by those 14 whose edicts or acts may fairly be said to represent official policy, inflicts the injury[,] that 15 the government as an entity is responsible under § 1983.” (Id.) Thus, they allege since 16 DCS inflicted the injury alleged in the SAC, DCS is accordingly “an entity [that] is 17 responsible under § 1983.” (Id.) 18 The Court finds DCS is not a “person” under § 1983 because it is not a “local 19 governing body” under Monell.9 The cases Plaintiffs provide point only to “municipal 20 liability.” In Monell, the court examined the legislative history and found no justification 21 for excluding municipalities from “persons” under § 1983. Monell v. Dep’t of Soc. Servs. 22 of City of New York, 436 U.S. 658, 660 (1978). DCS, however, is a state agency, not a 23 municipality. Monell is therefore inapposite. Plaintiffs also provided no case law holding 24 a state governmental agency constitutes a “local governing body.” (Doc. 115 at 4). 25 Plaintiffs further argue that DCS is liable under § 1983 because it acted according 26 to a policy, practice, or custom that caused the deprivation of Plaintiff’s constitutional

27 9 Regardless of whether DCS waived its Eleventh Amendment immunity when it removed this case from state court to federal court, the Court finds it is not a “local governing body” 28 and therefore cannot be sued under Monell. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 660 (1978). 1 rights. (Doc. 113 at 8). The policy, practice, or custom inquiry, however, is relevant only 2 where the plaintiff in a § 1983 lawsuit attempts to hold a municipality liable for the actions 3 of one of its officials. Monell, 436 U.S. at 660. The Court rejects Plaintiff’s argument 4 because DCS is not a municipality. Will, 491 U.S. at 58 (holding that a state or state agency 5 is not a “person” under § 1983). Furthermore, Plaintiffs seek only money damages against 6 DCS. Therefore, all the claims against DCS constitute “a suit against the State itself” and, 7 because a state is not a § 1983 “person,” all such claims are dismissed. Id. at 59. 8 IV. Conclusion 9 The Court will dismiss Counts 5–10, and 14 of Plaintiff Robinette’s SAC for failure 10 to comply with A.R.S. § 12-820.01. The Court will dismiss the state law claims against 11 DCS because DCS is a non-jural entity and may not be sued. The Court will also dismiss 12 the Monell-related claims (Count 13) against DCS because DCS is not a person under § 13 1983. Finally, as the state law causes of action accrued more than 180 days ago, the Court 14 will deny Plaintiff’s request for leave to amend because such amendments would be futile. 15 See Lopez, 203 F.3d at 1127-30. 16 Therefore, the only remaining claims for Plaintiff Robinette are: Counts 1–4, 11, 17 and 12, which involve claims for 42 U.S.C. §1983 violations; and Count 15, which involves 18 a civil conspiracy claim under 42 U.S.C. § 1985(3). 19 Accordingly, 20 IT IS HEREBY ORDERED that State Defendants’ Motion to Dismiss Plaintiff 21 Robinette’s state law claims (Doc. 111) is granted as to Counts 5–10, and 14. 22 IT IS FURTHER ORDERED that Counts 5–10, and 14, brought by the parents of 23 minor Plaintiffs A.L.N. and A.R.N. are dismissed because Plaintiffs conceded that the time 24 to file a NOC for their state law claims for damages resulting from minor Plaintiffs A.L.N. 25 and A.R.N.’s removals has expired. (Doc. 33 at 3). 26 IT IS FURTHER ORDERED that Plaintiffs’ Monell-related claims (Count 13) are 27 dismissed against DCS because DCS is not a person under § 1983. 28 … 1 IT IS FINALLY ORDERED that the Arizona Department of Child Safety 2|| (“DCS”) is dismissed with prejudice as a defendant from this action. 3 Dated this 5th day of January, 2022. 4 5 ZL we □ 6 norable'Diang/4. Huretewa 7 United States District Fudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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