1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Keitha Tucker, No. CV-23-02078-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 City of Avondale, et al.,
13 Defendants. 14 15 16 Pending before this Court is Defendants’ partial Motion to Dismiss Plaintiff’s First 17 Amended Complaint (Doc. 22). For the following reasons, Defendants motion is granted 18 in part and denied in part. 19 BACKGROUND 20 Plaintiff Keitha Tucker is the mother of Amarion Hope. (Doc. 14 at 1.) On February 21 21, 2023, Avondale Police Officer Cardenas Duarte (“Defendant”) received a shoplifting 22 complaint from Family Dollar store. (Id. at 2.) In responding to the call, Defendant 23 Cardenas Duarte encountered Hope walking in a vacant lot next to the dry Agua Fria 24 riverbed. (Id.) Defendant Duarte approached and attempted to detain Hope. (Id.) “[A] 25 struggle ensued; and [Hope] broke free.” (Id.) Defendant Duarte fired his pistol five times; 26 “the fourth or the fifth shot was the fatal one.” (Id. at 3.) 27 Plaintiff filed a Complaint (Doc. 1), which was later amended on November 22, 28 2023. The First Amended Complaint (Doc. 14) accuses Defendants Duarte and the City 1 of Avondale of (1) battery and wrongful death and (2) negligence per se. (Doc. 14 at 6-8.) 2 Furthermore, Plaintiff alleges that Defendant Duarte violated the Fourth Amendment by 3 using unreasonable force and the Fourteenth Amendment by interfering with familial 4 relationships. (Id. at 9–11.) In response, Defendants filed an Answer (Doc. 21) and Partial 5 Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 22). 6 DISCUSSION 7 Federal Rule of Civil Procedure 8(a) requires a complaint to contain “a short and 8 plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 9 8(a), so that the defendant receives “fair notice of what the . . . claim is and the grounds 10 upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a 11 motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12 12(b)(6), a complaint must contain factual allegations sufficient to “raise a right to relief 13 above the speculative level.” Id. When analyzing a complaint for failure to state a claim, 14 “allegations of material fact are taken as true and construed in the light most favorable to 15 the nonmoving party.” Buckey v. Cnty. of L.A., 968 F.2d 791, 794 (9th Cir. 1992). Legal 16 conclusions couched as factual allegations, however, are not given a presumption of 17 truthfulness, and “conclusory allegations of law and unwarranted inferences are not 18 sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 19 1998). 20 I. Count II – Negligence Per Se 21 A. Legal Standard 22 “As a general matter, a claim for negligence per se must be based on a statute 23 enacted ‘for the protection and safety of the public.’” Steinberger v. McVey ex rel. Cnty. 24 of Maricopa, 234 Ariz. 125, 139, 318 P.3d 419, 433 (Ariz. Ct. App. 2014) (quoting Good 25 v. City of Glendale, 150 Ariz. 218, 221, 722 P.2d 386, 389 (Ariz. Ct. App. 1986)). The 26 statute must “express rules of conduct in specific and concrete terms as opposed to general 27 or abstract principles.” Griffith v. Valley of Sun Recovery & Adjustment Bureau, Inc., 126 28 Ariz. 227, 229, 613 P.2d 1283, 1285 (Ariz. Ct. App. 1980). Moreover, “a fundamental 1 requirement in applying the doctrine of negligence per se is that the party asserting 2 negligence per se be a member of the class intended to be protected by the statute or 3 regulation.” Delgado v. S. Pac. Transp. Co., 763 F. Supp. 1509, 1517 (D. Ariz. 1991). 4 B. Analysis 5 A.R.S § 13-410(C) authorizes an officer to use deadly force when that officer 6 (1) “reasonably believes that it is necessary” to protect himself or a third person from what 7 the officer “reasonably believes to be the use or imminent use of deadly physical force” 8 and (2) needs to arrest or prevent the escape of a person the officer “reasonably believes” 9 is dangerous. Because A.R.S § 13-410(C) requires “further inquiry [into] the 10 circumstances or reasonableness of” the officer’s use of deadly force, a negligence per se 11 claim is not permissible. See Ibarra v. Gastelum, 249 Ariz. 493, 495, 471 P.3d 1028, 1030 12 (Ariz. Ct. App. 2020) (quoting Deering v. Carter, 92 Ariz. 329, 333, 376 P.2d 857 (1962)) 13 (alteration in original). 14 II. Count III – Unreasonable Use of Force 15 The parties stipulated on the record that Plaintiff would amend Count III to plead 16 that Plaintiff is the Informal Special Administrator for the Estate of Hope, which grants 17 Plaintiff the general powers of a personal representative over Hope’s estate. Thus, the 18 Court will not determine whether Plaintiff lacks standing to assert Count III. 19 III. Count IV – Loss of Family Relationship 20 A. Legal Standard 21 The Fourteenth Amendment prohibits a state from depriving “any person of life, 22 liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 23 Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under 24 the Fourteenth Amendment in the companionship and society of his or her child, and that 25 a ‘child’s interest in her relationship with a parent is sufficiently weighty by itself to 26 constitute a cognizable liberty interest.’” Curnow ex. Rel. Curnow v. Ridgecrest Police, 27 952 F.2d 321, 325 (9th Cir. 1991) (internal citations omitted) (quoting Smith v. City of 28 Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987)). “[O]nly official conduct that ‘shocks the 1 conscience’ is cognizable as a due process violation.” Porter v. Osborn, 546 F.3d 1131, 2 1137 (9th Cir. 2008) (quoting Cnty. Of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). 3 Under the Fourteenth Amendment, “where a law enforcement officer makes a snap 4 judgment because of an escalating situation, his conduct may only be found to shock the 5 conscience if he acts with a purpose to harm unrelated to legitimate law enforcement 6 objectives.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). Legitimate law 7 enforcement objectives include “arrest, self-protection, and protection of the public.” 8 Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 2022) (quoting Foster v. City of Indio, 9 908 F.3d 1204, 1211 (9th Cir. 2018).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Keitha Tucker, No. CV-23-02078-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 City of Avondale, et al.,
13 Defendants. 14 15 16 Pending before this Court is Defendants’ partial Motion to Dismiss Plaintiff’s First 17 Amended Complaint (Doc. 22). For the following reasons, Defendants motion is granted 18 in part and denied in part. 19 BACKGROUND 20 Plaintiff Keitha Tucker is the mother of Amarion Hope. (Doc. 14 at 1.) On February 21 21, 2023, Avondale Police Officer Cardenas Duarte (“Defendant”) received a shoplifting 22 complaint from Family Dollar store. (Id. at 2.) In responding to the call, Defendant 23 Cardenas Duarte encountered Hope walking in a vacant lot next to the dry Agua Fria 24 riverbed. (Id.) Defendant Duarte approached and attempted to detain Hope. (Id.) “[A] 25 struggle ensued; and [Hope] broke free.” (Id.) Defendant Duarte fired his pistol five times; 26 “the fourth or the fifth shot was the fatal one.” (Id. at 3.) 27 Plaintiff filed a Complaint (Doc. 1), which was later amended on November 22, 28 2023. The First Amended Complaint (Doc. 14) accuses Defendants Duarte and the City 1 of Avondale of (1) battery and wrongful death and (2) negligence per se. (Doc. 14 at 6-8.) 2 Furthermore, Plaintiff alleges that Defendant Duarte violated the Fourth Amendment by 3 using unreasonable force and the Fourteenth Amendment by interfering with familial 4 relationships. (Id. at 9–11.) In response, Defendants filed an Answer (Doc. 21) and Partial 5 Motion to Dismiss Plaintiff’s First Amended Complaint (Doc. 22). 6 DISCUSSION 7 Federal Rule of Civil Procedure 8(a) requires a complaint to contain “a short and 8 plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 9 8(a), so that the defendant receives “fair notice of what the . . . claim is and the grounds 10 upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a 11 motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12 12(b)(6), a complaint must contain factual allegations sufficient to “raise a right to relief 13 above the speculative level.” Id. When analyzing a complaint for failure to state a claim, 14 “allegations of material fact are taken as true and construed in the light most favorable to 15 the nonmoving party.” Buckey v. Cnty. of L.A., 968 F.2d 791, 794 (9th Cir. 1992). Legal 16 conclusions couched as factual allegations, however, are not given a presumption of 17 truthfulness, and “conclusory allegations of law and unwarranted inferences are not 18 sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 19 1998). 20 I. Count II – Negligence Per Se 21 A. Legal Standard 22 “As a general matter, a claim for negligence per se must be based on a statute 23 enacted ‘for the protection and safety of the public.’” Steinberger v. McVey ex rel. Cnty. 24 of Maricopa, 234 Ariz. 125, 139, 318 P.3d 419, 433 (Ariz. Ct. App. 2014) (quoting Good 25 v. City of Glendale, 150 Ariz. 218, 221, 722 P.2d 386, 389 (Ariz. Ct. App. 1986)). The 26 statute must “express rules of conduct in specific and concrete terms as opposed to general 27 or abstract principles.” Griffith v. Valley of Sun Recovery & Adjustment Bureau, Inc., 126 28 Ariz. 227, 229, 613 P.2d 1283, 1285 (Ariz. Ct. App. 1980). Moreover, “a fundamental 1 requirement in applying the doctrine of negligence per se is that the party asserting 2 negligence per se be a member of the class intended to be protected by the statute or 3 regulation.” Delgado v. S. Pac. Transp. Co., 763 F. Supp. 1509, 1517 (D. Ariz. 1991). 4 B. Analysis 5 A.R.S § 13-410(C) authorizes an officer to use deadly force when that officer 6 (1) “reasonably believes that it is necessary” to protect himself or a third person from what 7 the officer “reasonably believes to be the use or imminent use of deadly physical force” 8 and (2) needs to arrest or prevent the escape of a person the officer “reasonably believes” 9 is dangerous. Because A.R.S § 13-410(C) requires “further inquiry [into] the 10 circumstances or reasonableness of” the officer’s use of deadly force, a negligence per se 11 claim is not permissible. See Ibarra v. Gastelum, 249 Ariz. 493, 495, 471 P.3d 1028, 1030 12 (Ariz. Ct. App. 2020) (quoting Deering v. Carter, 92 Ariz. 329, 333, 376 P.2d 857 (1962)) 13 (alteration in original). 14 II. Count III – Unreasonable Use of Force 15 The parties stipulated on the record that Plaintiff would amend Count III to plead 16 that Plaintiff is the Informal Special Administrator for the Estate of Hope, which grants 17 Plaintiff the general powers of a personal representative over Hope’s estate. Thus, the 18 Court will not determine whether Plaintiff lacks standing to assert Count III. 19 III. Count IV – Loss of Family Relationship 20 A. Legal Standard 21 The Fourteenth Amendment prohibits a state from depriving “any person of life, 22 liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The 23 Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under 24 the Fourteenth Amendment in the companionship and society of his or her child, and that 25 a ‘child’s interest in her relationship with a parent is sufficiently weighty by itself to 26 constitute a cognizable liberty interest.’” Curnow ex. Rel. Curnow v. Ridgecrest Police, 27 952 F.2d 321, 325 (9th Cir. 1991) (internal citations omitted) (quoting Smith v. City of 28 Fontana, 818 F.2d 1411, 1419 (9th Cir. 1987)). “[O]nly official conduct that ‘shocks the 1 conscience’ is cognizable as a due process violation.” Porter v. Osborn, 546 F.3d 1131, 2 1137 (9th Cir. 2008) (quoting Cnty. Of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). 3 Under the Fourteenth Amendment, “where a law enforcement officer makes a snap 4 judgment because of an escalating situation, his conduct may only be found to shock the 5 conscience if he acts with a purpose to harm unrelated to legitimate law enforcement 6 objectives.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). Legitimate law 7 enforcement objectives include “arrest, self-protection, and protection of the public.” 8 Ochoa v. City of Mesa, 26 F.4th 1050, 1056 (9th Cir. 2022) (quoting Foster v. City of Indio, 9 908 F.3d 1204, 1211 (9th Cir. 2018). Illegitimate law enforcement objectives include an 10 officer acting with ulterior motives to bully or get even with a suspect. Id. 11 B. Analysis 12 Plaintiff alleges that Defendant Duarte’s use of deadly force was not a legitimate 13 law enforcement activity because Defendant Duarte did not know if Hope was armed. 14 (Doc. 14 at 11.) Defendant Duarte only knew that Hope had “something in his right 15 pocket.” (Id. at 3.) Additionally, according to Plaintiff, Defendant Duarte shot Hope in 16 the back and “started dumping rounds on him” as Hope “ran toward an empty desert” 17 because Defendant Duarte was angry “after having been knocked over by a skinny, 18 homeless, potentially mentally-disturbed teenager.” (Id. at 2–4, 11.) 19 Plaintiff has sufficiently pled that Defendant Duarte’s actions were unrelated to 20 legitimate law enforcement objectives because no members of the public were in an empty 21 dessert, and Hope was running away from Defendant Duarte. A review of the footage 22 provided by Defendants does not resolve all possible issues in this claim in favor of 23 Defendants. Thus, Defendants motion to dismiss Count IV is denied. 24 IV. Doe Defendants 25 In the case caption, Plaintiff names as defendants Jane Doe Duarte and Does 1–20. 26 (Doc. 14.) Plaintiff, however, fails to allege any facts regarding what the fictitiously named 27 defendants did or did not do. Moreover, Plaintiff fails to show how Jane Doe Duarte and 28 Does 1–20 are connected to Counts I–IV. Therefore, Jane Doe Duarte and Does 1–20 are 1 || dismissed from this action. 2 V. Punitive Damages 3 Plaintiff concedes she is not entitled to punitive damages on any state law claims or 4|| claims against the City of Avondale. (Doc. 28 at 3.) Thus, the Court dismisses □□□□□□□□□□□ 5 || request for punitive damages on Counts I and II, as well as Counts III and IV as it pertains || to the City of Avondale. 7 CONCLUSION 8 Accordingly, 9 IT IS THEREFORE ORDERED that Defendants’ partial Motion to Dismiss □□ Plaintiffs First Amended Complaint (Doc. 22) is granted in part and denied in part. The 11 || Court grants Defendants’ Motion regarding Count II, Doe Defendants, punitive damages for all state law claims, and punitive damages against the City of Avondale. The Court 13 || denies Defendants’ Motion concerning Count IV. Plaintiff is granted thirty days from the date of this Order within which to file an amended pleading that cures the deficiencies 15 || discussed above. 16 Dated this 8th day of May, 2024. 17 - 18 A Whacrsay Fotos 19 Chief United States District Judge 20 21 22 23 24 25 26 27 28
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