1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Robert Zuniga, No. CV-24-00263-TUC-JGZ (MAA)
10 Plaintiff, ORDER
11 v.
12 County of Pima, et al.,
13 Defendants. 14 15 Pending before the Court is a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), 16 filed on July 1, 2024, by all Defendants except for Sheriff Nanos in his official capacity. 17 (Doc. 14.) The Motion is fully briefed. (Docs. 14, 17, 20.) On July 25, 2024, Magistrate 18 Judge Michael A. Ambri issued a Report and Recommendation (R&R) recommending that 19 this Court grant in part the Defendants’ Motion to Dismiss. (Doc. 21.) Defendants filed an 20 Objection requesting that the Court clarify the remaining claims in the matter. (Doc. 26.) 21 Plaintiff filed a “Reply to Objection,” (Doc. 27), which the Court will construe as an 22 Objection to the Magistrate Judge’s R&R. For the following reasons, the Court will 23 overrule Plaintiff’s Objection, adopt Magistrate Judge Ambri’s R&R, and grant 24 Defendants’ Motion to Dismiss in part. 25 BACKGROUND 26 The R&R details the factual and procedural history of this case. (Doc. 21 at 2.) 27 Because neither party objects to this portion of the R&R, the Court will adopt it in its 28 entirety. 1 The plaintiff, Robert Zuniga, is employed as a Corrections Lieutenant with the Pima County Sheriff’s Department. Complaint, Doc. 1, p. 9. Zuniga 2 alleges that his superiors concealed the truth about medical failures at the jail 3 “forcing plaintiff to come forward as a whistle-blower and release the truth on social media and to news reporters on December 09, 2021.” Doc. 1, pp. 4 9-10. He asserts that he subsequently experienced “racial discrimination, 5 retaliation, workplace bullying, and harassment.” Doc. 1, p. 10. On May 23, 2024, Zuniga filed a Complaint in this court claiming (1) 6 national origin discrimination (Title VII); (2) retaliation (Title VII); (3) 7 hostile work environment (Title VII); (4)(a) national origin discrimination under the Equal Protection Clause (42 U.S.C. § 1983); (4)(b) a First 8 Amendment violation (42 U.S.C. § 1983); and (4)(c) a Fourteenth 9 Amendment property interest due process violation (42 U.S.C. § 1983). Doc. 1, p. 5. 10 On July 1, 2024, the defendants, except for Sheriff Nanos in his 11 official capacity, filed the pending motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 14. They argue that defendants Sheriff Nanos, 12 in his personal capacity, Chief Lowing, and Captain Koumal should be 13 dismissed with prejudice. Doc. 14, p. 3. They maintain that defendant Pima County Sheriff’s Department is a non-jural entity that cannot be sued. Doc. 14 14, p. 3. They assert that defendant Pima County should be dismissed with prejudice because it is not vicariously liable for the conduct of the Sheriff or 15 his employees. Doc. 14, p. 4. Last, they argue that punitive damages are not 16 available against the only defendant that should remain, Sheriff Nanos in his official capacity. Doc. 14, p. 4. 17 18 (Doc. 21 at 2.) 19 In his R&R, Magistrate Judge Ambri recommends: (1) dismissing Plaintiff’s Title 20 VII claims (Counts 1-3) against Sheriff Nanos in his personal capacity, Chief Lowing, 21 Captain Koumal, and Pima County because Title VII claims may only be brought against 22 an employer in their official capacity; (2) dismissing Pima County Sheriff’s Department (PCSD) because it is a non-jural entity and cannot be sued; and (3) dismissing Plaintiff’s 23 claim for punitive damages against Sheriff Nanos in his official capacity under A.R.S. §12- 24 920.04. (See Doc. 21.) 25 LEGAL STANDARD 26 This Court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must 28 review the magistrate judge’s findings and recommendations de novo if objection is made, 1 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 2 banc). The party seeking de novo review must provide “specific written objections to the 3 proposed findings and recommendations” of the magistrate judge. Fed. R. Civ. P. 72(b)(2). 4 The clear purpose of this requirement is judicial economy—to permit magistrate judges to 5 resolve matters not objectionable to the parties. See Thomas v. Arn, 474 U.S. 140, 149 6 (1985). Because de novo review of the entire R&R would defeat the efficiencies intended 7 by Congress and Rule 72, a general objection has the same effect as a failure to object. 8 Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 9 19, 2013); Eagleman v. Shinn, No. CV-18-2708-PHX-RM (DTF), 2019 WL 7019414, at 10 *5 (D. Ariz. Dec. 20, 2019). 11 Plaintiff makes two objections to the Magistrate Judge’s R&R: (1) Pima County 12 should remain a Defendant under his Title VII claims (Counts 1-3) because Pima County 13 is his proper employer and (2) limiting liability to Sheriff Nanos in his official capacity 14 under Title VII is inappropriate. (Doc. 27 at 2-3.) Magistrate Judge Ambri addressed and rejected these same arguments in his R&R. (Doc. 21 at 3-4.) The Court will address 15 Plaintiff’s Objections in turn. 16 The Court agrees with the Magistrate Judge’s conclusion that Plaintiff’s Title VII 17 claims (Counts 1-3) against Pima County should be dismissed. (Doc. 21 at 4.) Pima County 18 is not liable for the alleged conduct of the Sheriff or its employees. Claims under Title VII 19 are properly brought only against an individual's employer. See Carver v. Sheriff of LaSalle 20 Cty., Illinois, 243 F.3d 379, 381 (7th Cir. 2001). Since the Sheriff, not the County, is 21 Zuniga’s employer, the County cannot be held independently liable for the Title VII 22 violations Zuniga alleges. Id. at 717 (finding that the sheriff, not the county, could be held 23 liable for employment discrimination under Title VII). Moreover, counties are generally 24 not vicariously liable for the acts of elected officials whose duties are imposed by statute 25 or the Arizona constitution. Loredo v. Maricopa Cnty., No. 1 CA-CV 22-0259, 2023 WL 26 2181126, at *1 (Ariz. Ct. App. Feb. 23, 2023); Hernandez v. Maricopa Cnty., 138 Ariz. 27 143, 146 (App. 1983). The Pima County Sheriff is elected, and the Legislature establishes 28 his duties. Therefore, the Court will overrule Plaintiff’s Objection and dismiss Plaintiff’s 1 Title VII claims (Counts 1-3) against Pima County. Plaintiff’s § 1983 custom or policy 2 claim against Pima County (Count 4) will remain. 3 The Court agrees with the Magistrate Judge’s conclusion that Plaintiff’s Title VII 4 claims (Counts 1-3) against Sheriff Nanos in his personal capacity should be dismissed. 5 (Doc. 21 at 3.) Title VII claims are not permitted against individual defendants. See Miller 6 v.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Robert Zuniga, No. CV-24-00263-TUC-JGZ (MAA)
10 Plaintiff, ORDER
11 v.
12 County of Pima, et al.,
13 Defendants. 14 15 Pending before the Court is a Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6), 16 filed on July 1, 2024, by all Defendants except for Sheriff Nanos in his official capacity. 17 (Doc. 14.) The Motion is fully briefed. (Docs. 14, 17, 20.) On July 25, 2024, Magistrate 18 Judge Michael A. Ambri issued a Report and Recommendation (R&R) recommending that 19 this Court grant in part the Defendants’ Motion to Dismiss. (Doc. 21.) Defendants filed an 20 Objection requesting that the Court clarify the remaining claims in the matter. (Doc. 26.) 21 Plaintiff filed a “Reply to Objection,” (Doc. 27), which the Court will construe as an 22 Objection to the Magistrate Judge’s R&R. For the following reasons, the Court will 23 overrule Plaintiff’s Objection, adopt Magistrate Judge Ambri’s R&R, and grant 24 Defendants’ Motion to Dismiss in part. 25 BACKGROUND 26 The R&R details the factual and procedural history of this case. (Doc. 21 at 2.) 27 Because neither party objects to this portion of the R&R, the Court will adopt it in its 28 entirety. 1 The plaintiff, Robert Zuniga, is employed as a Corrections Lieutenant with the Pima County Sheriff’s Department. Complaint, Doc. 1, p. 9. Zuniga 2 alleges that his superiors concealed the truth about medical failures at the jail 3 “forcing plaintiff to come forward as a whistle-blower and release the truth on social media and to news reporters on December 09, 2021.” Doc. 1, pp. 4 9-10. He asserts that he subsequently experienced “racial discrimination, 5 retaliation, workplace bullying, and harassment.” Doc. 1, p. 10. On May 23, 2024, Zuniga filed a Complaint in this court claiming (1) 6 national origin discrimination (Title VII); (2) retaliation (Title VII); (3) 7 hostile work environment (Title VII); (4)(a) national origin discrimination under the Equal Protection Clause (42 U.S.C. § 1983); (4)(b) a First 8 Amendment violation (42 U.S.C. § 1983); and (4)(c) a Fourteenth 9 Amendment property interest due process violation (42 U.S.C. § 1983). Doc. 1, p. 5. 10 On July 1, 2024, the defendants, except for Sheriff Nanos in his 11 official capacity, filed the pending motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 14. They argue that defendants Sheriff Nanos, 12 in his personal capacity, Chief Lowing, and Captain Koumal should be 13 dismissed with prejudice. Doc. 14, p. 3. They maintain that defendant Pima County Sheriff’s Department is a non-jural entity that cannot be sued. Doc. 14 14, p. 3. They assert that defendant Pima County should be dismissed with prejudice because it is not vicariously liable for the conduct of the Sheriff or 15 his employees. Doc. 14, p. 4. Last, they argue that punitive damages are not 16 available against the only defendant that should remain, Sheriff Nanos in his official capacity. Doc. 14, p. 4. 17 18 (Doc. 21 at 2.) 19 In his R&R, Magistrate Judge Ambri recommends: (1) dismissing Plaintiff’s Title 20 VII claims (Counts 1-3) against Sheriff Nanos in his personal capacity, Chief Lowing, 21 Captain Koumal, and Pima County because Title VII claims may only be brought against 22 an employer in their official capacity; (2) dismissing Pima County Sheriff’s Department (PCSD) because it is a non-jural entity and cannot be sued; and (3) dismissing Plaintiff’s 23 claim for punitive damages against Sheriff Nanos in his official capacity under A.R.S. §12- 24 920.04. (See Doc. 21.) 25 LEGAL STANDARD 26 This Court “may accept, reject, or modify, in whole or in part, the findings or 27 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court “must 28 review the magistrate judge’s findings and recommendations de novo if objection is made, 1 but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en 2 banc). The party seeking de novo review must provide “specific written objections to the 3 proposed findings and recommendations” of the magistrate judge. Fed. R. Civ. P. 72(b)(2). 4 The clear purpose of this requirement is judicial economy—to permit magistrate judges to 5 resolve matters not objectionable to the parties. See Thomas v. Arn, 474 U.S. 140, 149 6 (1985). Because de novo review of the entire R&R would defeat the efficiencies intended 7 by Congress and Rule 72, a general objection has the same effect as a failure to object. 8 Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL 5276367, at *2 (D. Ariz. Sept. 9 19, 2013); Eagleman v. Shinn, No. CV-18-2708-PHX-RM (DTF), 2019 WL 7019414, at 10 *5 (D. Ariz. Dec. 20, 2019). 11 Plaintiff makes two objections to the Magistrate Judge’s R&R: (1) Pima County 12 should remain a Defendant under his Title VII claims (Counts 1-3) because Pima County 13 is his proper employer and (2) limiting liability to Sheriff Nanos in his official capacity 14 under Title VII is inappropriate. (Doc. 27 at 2-3.) Magistrate Judge Ambri addressed and rejected these same arguments in his R&R. (Doc. 21 at 3-4.) The Court will address 15 Plaintiff’s Objections in turn. 16 The Court agrees with the Magistrate Judge’s conclusion that Plaintiff’s Title VII 17 claims (Counts 1-3) against Pima County should be dismissed. (Doc. 21 at 4.) Pima County 18 is not liable for the alleged conduct of the Sheriff or its employees. Claims under Title VII 19 are properly brought only against an individual's employer. See Carver v. Sheriff of LaSalle 20 Cty., Illinois, 243 F.3d 379, 381 (7th Cir. 2001). Since the Sheriff, not the County, is 21 Zuniga’s employer, the County cannot be held independently liable for the Title VII 22 violations Zuniga alleges. Id. at 717 (finding that the sheriff, not the county, could be held 23 liable for employment discrimination under Title VII). Moreover, counties are generally 24 not vicariously liable for the acts of elected officials whose duties are imposed by statute 25 or the Arizona constitution. Loredo v. Maricopa Cnty., No. 1 CA-CV 22-0259, 2023 WL 26 2181126, at *1 (Ariz. Ct. App. Feb. 23, 2023); Hernandez v. Maricopa Cnty., 138 Ariz. 27 143, 146 (App. 1983). The Pima County Sheriff is elected, and the Legislature establishes 28 his duties. Therefore, the Court will overrule Plaintiff’s Objection and dismiss Plaintiff’s 1 Title VII claims (Counts 1-3) against Pima County. Plaintiff’s § 1983 custom or policy 2 claim against Pima County (Count 4) will remain. 3 The Court agrees with the Magistrate Judge’s conclusion that Plaintiff’s Title VII 4 claims (Counts 1-3) against Sheriff Nanos in his personal capacity should be dismissed. 5 (Doc. 21 at 3.) Title VII claims are not permitted against individual defendants. See Miller 6 v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993) (“[I]ndividual defendants cannot 7 be held liable for damages under Title VII.”). Therefore, the Court will dismiss Plaintiff’s 8 Title VII claims (Counts 1-3) against Sheriff Nanos in his personal capacity. Plaintiff’s 9 Title VII claims (Counts 1-3) against Sheriff Nanos in his official capacity will remain. 10 In their objection, Defendants request that the Court (1) clarify the claims remaining 11 in this matter and (2) specify that “no state law claims were pled and therefore no state law 12 claims are at issue.” (See Doc. 26.) 13 The following claims will proceed: (1) Plaintiff’s Title VII claims (Counts 1-3) 14 against Sheriff Nanos in his official capacity; (2) Plaintiff’s § 1983 claims (Count 4), including claims for punitive damages, against Sheriff Nanos in his personal capacity, 15 Chief Lowing in his personal capacity, and Captain Koumal in his personal capacity; and 16 (3) Plaintiff’s § 1983 custom or policy claim (Count 4) against Pima County for its handling 17 of his workplace discrimination complaint. 18 Plaintiff acknowledges that he did not plead state law violations in his Complaint, 19 (see Doc. 1; Doc. 22 at 2), consequently no state law claims are currently at issue.1 Plaintiff 20 may amend his Complaint to include state law claims. Rule 15, Fed.R.Civ.P.; see Noll v. 21 Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute as stated in Akhtar v. 22 Mesa, 698 F.3d 1202 (2012) (leave to amend is liberally granted unless absolutely clear 23 deficiencies cannot be cured by amendment). Plaintiff should consider Defendants’ 24 arguments that Plaintiff’s state law violations are barred under A.R.S. § 12-821 and A.R.S. 25 § 12-821.01, (Doc. 20 at 3), prior to filing an amended complaint. 26 If Plaintiff chooses to amend his complaint, Plaintiff is advised that all causes of 27
28 1 Referring to potential state law violations in response to the Defendants’ Motion to Dismiss, (Doc. 17 at 2), does not make such claims part of the Complaint. || action alleged in the original complaint which are not alleged in any amended complaint will be waived. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 3) 1990) (“an amended pleading supersedes the original”). Any amended complaint must be retyped or rewritten in its entirety and may not incorporate any part of the original 5 || complaint by reference. An amended complaint must be clearly designated as an amended 6 || complaint on the face of the document. Finally, any amended complaint must be formatted || in compliance with L.R.Civ 7.1(a)(3). Accordingly, 8 IT IS ORDERED: 9 1. The Magistrate Judge’s R&R (Doc. 21) is adopted. 10 2. Plaintiff's Objection (Doc. 27) is overruled. 11 3. Defendants’ Motion to Dismiss (Doc. 14) is granted in part. 12 a. Plaintiffs Title VII claims (Counts 1-3) against Sheriff Nanos in his 13 personal capacity, Chief Lowing, Captain Koumal, and Pima County are 14 dismissed. Defendant Pima County Sheriff's Department (PCSD) is 15 dismissed as a party in this litigation. Plaintiff's claim for punitive 16 damages against Sheriff Nanos in his official capacity is dismissed. 17 b. The following claims remain: (1) Plaintiff's Title VII claims (Counts 1- 18 3) against Sheriff Nanos in his official capacity; (2) Plaintiff's § 1983 19 claims (Count 4), including claims for punitive damages, against Sheriff 20 Nanos in his personal capacity, Chief Lowing in his personal capacity, and Captain Koumal in his personal capacity; and (3) Plaintiff's § 1983 custom or policy claim (Count 4) against Pima County for its handling of 33 his workplace discrimination complaint. 4. If Plaintiff chooses to amend his Complaint to assert state law claims against Defendants, he must do so on or before October 9, 2024. Dated this 9th day of September, 2024.
27 28 /, Jennifer G. Zi United States District Judge _5-