Hernandez v. Phoenix, City of ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Justina Hernandez, et al., No. CV-20-00767-PHX-GMS 10 Plaintiffs, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. 14 15 16 Pending before the Court is Defendants City of Phoenix (“City”) and Trevin 17 Janser’s (“Janser”) (collectively, “Defendants”) Partial Motion to Dismiss Plaintiffs’ 18 Amended Complaint. (Doc. 20.) For the following reasons, Defendants’ Motion is granted 19 in part and denied in part. 20 BACKGROUND 21 This case arises out of the shooting and killing of Alejandro Hernandez. On April 22 29, 2019, Alejandro’s sister, Plaintiff Anna Hernandez, called the Phoenix Police 23 Department (“Phoenix PD”) to her home because Alejandro had violated an order of 24 protection. (Doc. 19 ¶ 20.) Phoenix PD officers later found Alejandro near North 35th 25 Street and Roosevelt Road and called Phoenix Police Officer Janser for backup. Id. 26 ¶¶ 23-24. After Janser arrived, Plaintiffs allege that the officers observed Alejandro with 27 a “plastic toy gun” strapped to his shoulder. Id. ¶ 27. Janser subsequently shot Alejandro. 28 Id. ¶¶ 28–29. 1 Plaintiffs Justina Hernandez, on her own behalf and as the Personal Representative 2 for the Estate of Decedent Alejandro Hernandez, and Jose Hernandez, Jose Hernandez, Jr., 3 Anna Hernandez, and Guadalupe Hernandez, on their own behalves, (collectively, 4 “Plaintiffs”) brought suit against the City and Janser. The Amended Complaint alleges 5 excessive force in violation of the Fourth Amendment pursuant to 42 U.S.C. § 1983 against 6 Janser (“First Claim for Relief”) and municipal liability pursuant to 42 U.S.C. § 1983 7 (“Second Claim for Relief”) and intentional infliction of emotional distress (“Fourth Claim 8 for Relief”) against the City.1 After Plaintiffs filed their Amended Complaint, Defendants 9 filed this Motion.2 10 DISCUSSION 11 I. Legal Standard 12 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 13 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 14 elements of a cause of action”; it must contain factual allegations sufficient to “raise the 15 right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 16 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint 17 for failure to state a claim, “allegations of material fact are taken as true and construed in 18 the light most favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 19 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a 20 1 In the Third Claim for Relief, the Amended Complaint alleges wrongful death under 21 A.R.S. § 12-612 against the City. In response to Defendants’ Partial Motion to Dismiss Plaintiffs’ First Amended Complaint, Plaintiff Justina Hernandez voluntarily dismissed the 22 wrongful death claim. (Doc. 26.) The voluntary dismissal does not specify whether it is Justina Hernandez, on behalf of the estate, or Justina Hernandez, on her own behalf, or 23 both dismissing the claim. However, in their response to the motion to dismiss, Plaintiffs state that the only plaintiff asserting the Third Claim for Relief is “Justina Hernandez, the 24 court-appointed Personal Representative of Decedent Alejandro Hernandez’s Estate.” (Doc. 25 at 4.) Accordingly, the Court dismisses the Third Claim for Relief as to all 25 Plaintiffs as that appears to be Plaintiffs’ intent. If this was not the intent of Plaintiffs, Plaintiffs need to so specify to the Court immediately. 26 2 The parties dispute whether the Amended Complaint makes it clear that the First and 27 Second Claims for Relief are only brought by Justina Hernandez on behalf of the estate of Alejandro Hernandez. To the extent that these two claims are brought by Justina 28 Hernandez, on her own behalf, Jose Hernandez, Jose Hernandez, Jr., Anna Hernandez, and Guadalupe Hernandez, on their own behalves, those claims are dismissed. 1 presumption of truthfulness, and “conclusory allegations of law and unwarranted 2 inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 3 696, 699 (9th Cir. 1998). 4 II. Analysis 5 a. Municipal Liability 6 “[A] local government may not be sued under § 1983 for an injury inflicted solely 7 by its employees or agents.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). 8 “[A] municipality can be found liable under § 1983 only where the municipality itself 9 causes the constitutional violation at issue.” City of Canton v. Harris, 489 U.S. 378, 385 10 (1989). To establish liability under Monell, a plaintiff must prove “(1) that [the plaintiff] 11 possessed a constitutional right of which [they] w[ere] deprived; (2) that the municipality 12 had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s 13 constitutional right; and, (4) that the policy is the moving force behind the constitutional 14 violation.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting 15 Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). In 16 pleading a Monell claim, a complaint “may not simply recite the elements of a cause of 17 action, but must contain sufficient allegations of underlying facts to give fair notice and to 18 enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v. Cnty. of 19 Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 (9th 20 Cir. 2011)). 21 A Monell claim can be established in one of three ways. See Thomas v. Cnty. of 22 Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014). One way is when “implementation of [the 23 local government’s] official policies or established customs inflicts the constitutional 24 injury.” Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010) (quoting 25 Monell, 436 U.S. at 708). A policy or custom is generally one adopted and expressly set 26 forth, but “may [also] be inferred from widespread practices or ‘evidence of repeated 27 constitutional violations for which the errant municipal officers were not discharged or 28 reprimanded.’” Nadell v. Las Vegas Metro. Police Dep’t, 268 F.3d 924, 929 (9th Cir. 2001) 1 (quoting Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992), abrogated on other 2 grounds as recognized in Beck v. City of Upland, 527 F.3d 853, 862 n.8 (9th Cir. 2008)). 3 Here, Plaintiff Justina Hernandez, on behalf of the estate, alleges that “Phoenix PD 4 has a well-documented history of overuse and abuse of lethal force.” (Doc. 19 ¶ 53.) 5 Plaintiff refers to several examples of this alleged abuse, such as the shooting and killing 6 of Michelle Cusseaux in 2014 where “a review board staffed partially b[y] non-officer 7 civilians concluded that [the responsible officer] violated department policy” but the officer 8 was “demoted” and “never terminated from employment by the City.” Id. ¶ 54. Plaintiff 9 alleges that in the ten years leading up to 2019, the City paid over $26 million in settlements 10 for excessive use of force, in 2018 the number of officer-involved shootings by Phoenix 11 PD “dwarfed” the number of officer-involved shootings in cities of similar size, and that, 12 “upon information and belief,” the 2018 shootings resulted in multiple lawsuits and the 13 majority of officer-involved shootings in 2018 and 2019 were unconstitutional. Id. 14 ¶¶ 60-62. Plaintiff asserts that the City has formed committees at different times to reduce 15 “unconstitutional officer-involved shootings” but that recommendations from those 16 committees have yet to be fully implemented and “partial compliance with these 17 recommendations has not curtailed Phoenix PD’s violent use of force in any meaningful 18 way.” Id. ¶¶ 56–59, 63–64. Additionally, Plaintiff alleges that, by “fostering and/or 19 creating a culture and department-wide practice of condoning the inappropriate use of 20 force[,]” the City was “deliberate[ly] indifferen[t] to Alejandro Hernandez’s constitutional 21 rights” and a “direct and proximate cause of Alejandro Hernandez’s death.” Id. ¶¶ 70–73. 22 Drawing all reasonable inferences in favor of Plaintiff, Plaintiff sufficiently alleges 23 Monell liability. Plaintiff’s allegations of officer-involved shootings combined with the 24 City’s failure to implement recommendations to reduce unconstitutional officer-involved 25 shootings plausibly support Plaintiff’s contention that, through its practice of condoning 26 inappropriate use of force, the City was deliberately indifferent to Alejandro’s rights and 27 was the moving force behind his death. Accordingly, Defendants’ Motion to dismiss 28 1 Plaintiff’s Monell claim is denied.3 2 b. Intentional Infliction of Emotional Distress 3 To establish intentional infliction of emotional distress (“IIED”) under Arizona law, 4 a plaintiff must demonstrate that (1) the defendant’s conduct was extreme and outrageous; 5 (2) the defendant intended the emotional distress or “recklessly disregard[ed] the near 6 certainty that such distress [would] result from his conduct[;]” and (3) severe emotional 7 distress resulted from the defendant’s conduct. Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 8 P.2d 580, 585 (1987). Arizona has adopted the Restatement test for what constitutes 9 extreme and outrageous conduct. See Johnson v. McDonald, 197 Ariz. 155, 160, 3 P.3d 10 1075, 1080 (Ct. App. 1999). The Restatement states: 11 Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of 12 decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to 13 an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” 14 15 Restatement (Second) of Torts § 46 cmt.d. Courts should not dismiss IIED claims “if 16 reasonable minds could differ about whether the conduct is sufficiently outrageous[.]” 17 Johnson, 197 Ariz. at 160, 3 P.3d at 1080. 18 Plaintiffs argue that Phoenix PD’s refusal for an hour to inform the family about the 19 shooting and that Alejandro was transported to the hospital with life threatening injuries 20 constitutes extreme and outrageous conduct. Specifically, Plaintiffs allege that Phoenix 21 PD would not allow Plaintiffs to go to the scene of the shooting or answer questions about 22 what happened, other than to confirm that Alejandro had been shot. (Doc. 19 ¶¶ 33–34.) 23 As a result, Plaintiffs allege they were deprived of the opportunity to spend Alejandro’s 24 last moments with him in the hospital and had to find out about Alejandro’s death by 25 3 Defendants also argue Plaintiff fails to state a failure to train claim under Monell. (Doc. 26 20 at 7.) Although Plaintiff alleges facts related to failure to train in the Amended Complaint, Plaintiff only clearly addresses the policy or custom theory in her response to 27 the motion to dismiss. As Plaintiff does not expressly argue the failure to train claim in her response and because the policy or custom theory is sufficient on its own to withstand 28 the motion to dismiss Monell liability, at least at this stage, the Court does not address the failure to train. 1 turning on the local news. Id. ¶¶ 36–39. Defendants assert that these allegations fail to 2 constitute extreme or outrageous conduct but have not cited any cases that determine that 3 allegations of failure to notify are insufficient to state a claim of IIED. Absent clear 4 authority to the contrary, the Court concludes that, at least at this stage of the proceedings, 5 the allegations of outrageous conduct are sufficient to survive a motion to dismiss. 6 Plaintiffs also sufficiently allege the other elements of IIED. Plaintiffs assert that 7 Phoenix PD refused to provide details “despite the fact that they knew” the family 8 desperately wanted information and that the family was “greatly distressed.” Id. ¶ 35. 9 Because Plaintiffs have alleged sufficient facts to satisfy the notice pleading standard of 10 Rule 8, Defendants’ Motion to dismiss Plaintiffs’ IIED claim is denied. 11 c. Punitive Damages 12 In their response to Defendants’ Motion to Dismiss, Plaintiffs do not address 13 Defendants’ argument that punitive damages are not recoverable against the City. Failure 14 to respond to a motion “may be deemed a consent to the denial or granting of the motion 15 and the Court may dispose of the motion summarily.” LRCiv. 7.2(i). Accordingly, to the 16 extent Plaintiffs claim punitive damages against the City, their claim is denied. 17 CONCLUSION 18 The Amended Complaint sufficiently alleges municipal liability and IIED. To the 19 extent that the Amended Complaint alleges punitive damages against the City and to the 20 extent that the Plaintiffs, on their own behalves, assert the First and Second Claims for 21 Relief, those claims are denied. The Third Claim for Relief is also dismissed as to all 22 Plaintiffs. Accordingly, 23 IT IS THEREFORE ORDERED that Defendants City of Phoenix and Trevin 24 Janser’s Partial Motion to Dismiss Plaintiffs’ Amended Complaint (Doc. 20) is 25 GRANTED in part and DENIED in part as follows: 26 1. The Amended Complaint’s punitive damages claim against the City is 27 dismissed, the First and Second Claims for Relief, brought by the Plaintiffs on their own 28 behalves, are dismissed, and the Third Claim for Relief is dismissed as to all Plaintiffs. 1 2. The remainder of Defendants’ Motion is denied. 2 Dated this 11th day of January, 2021. Wars ) 4 A Whacrsay Sooo) 5 Chief United states District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-