Fountain v. Arizona, State of ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Brittney Fountain, No. CV-21-00356-PHX-JJT 10 Plaintiff, ORDER 11 v. 12 State of Arizona, et al., 13 Defendants. 14 15 At issue is Defendant Van Winkle’s Motion to Dismiss (Doc. 49, MTD), to which 16 Plaintiff Brittney Fountain filed a Response (Doc. 51, Resp.) and Van Winkle filed a Reply 17 (Doc. 53, Reply). The Court has reviewed the parties’ briefs and finds this matter 18 appropriate for decision without oral argument. See LRCiv 7.2(f). For the reasons set forth 19 below, the Court denies Van Winkle’s Motion to Dismiss. 20 I. BACKGROUND 21 In this case, Plaintiff alleges Defendant Jason McClelland, Plaintiff’s supervisor at 22 the Arizona Department of Corrections, sexually assaulted her, and she seeks damages 23 against McClelland and Warden Jeffrey Van Winkle under 42 U.S.C. § 1983 and the State 24 of Arizona under Title VII. The Court previously recited the background facts of this case 25 in its October 27, 2021, Order (Doc. 40), in which the Court granted in part Defendants’ 26 first Motion to Dismiss. In that Order, the Court granted Plaintiff leave to amend the § 1983 27 Equal Protection claim (Count Three) if Plaintiff could make non-conclusory factual 28 allegations of intentional discrimination after her reports of harassment and sexual assault. 1 Plaintiff filed her First Amended Complaint (Doc. 45, FAC) on November 11, 2021, and 2 the Court will now examine whether Plaintiff’s factual allegations are sufficient to state an 3 Equal Protection claim against Van Winkle. 4 II. LEGAL STANDARD 5 When analyzing a complaint for failure to state a claim for relief under Federal Rule 6 of Civil Procedure 12(b)(6), the well-pled factual allegations are taken as true and construed 7 in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 8 (9th Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the 9 assumption of truth, Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are 10 insufficient to defeat a motion to dismiss for failure to state a claim. In re Cutera Sec. Litig., 11 610 F.3d 1103, 1108 (9th Cir. 2010). 12 A dismissal under Rule 12(b)(6) for failure to state a claim can be based on either (1) 13 the lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal 14 claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). “While a 15 complaint attacked by a Rule 12(b)(6) motion does not need detailed factual allegations, a 16 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more 17 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 18 will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). The 19 complaint must thus contain “sufficient factual matter, accepted as true, to ‘state a claim to 20 relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 21 570). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual 22 proof of those facts is improbable, and that ‘recovery is very remote and unlikely.’” 23 Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 24 III. ANALYSIS 25 Van Winkle argues the allegations in Plaintiff’s First Amended Complaint are 26 insufficient to establish purposeful discrimination or violation of a clearly established right 27 of which a reasonable official would have known, and therefore he is entitled to qualified 28 immunity from Plaintiff’s § 1983 Equal Protection claim. (MTD at 1.) 1 A. § 1983 Equal Protection Claim 2 Van Winkle first argues that Plaintiff does not adequately allege a § 1983 3 constitutional violation against him because her allegations are “insufficient to establish 4 that Van Winkle purposefully discriminated against Plaintiff.” (MTD at 1.) Section 1983 5 grants every person a right of action for “the deprivation of any rights, privileges, or 6 immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. However, Section 7 1983 is “not itself a source of substantive rights.” Sampson v. Cty. of Los Angeles by & 8 through Los Angeles Cty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1018 (9th Cir. 9 2020). To state a § 1983 claim, Plaintiff “must allege the violation of a right secured by the 10 Constitution and laws of the United States” committed by “a person acting under color of 11 state law.” West v. Atkins, 487 U.S. 42, 48 (1988). 12 When stating an Equal Protection claim under § 1983, “a plaintiff must show that 13 the defendants acted with an intent or purpose to discriminate against the plaintiff based 14 upon membership in a protected class.” Sampson, 974 F.3d at 1022. A supervisor commits 15 intentional discrimination based on the plaintiff’s sex in violation of the Equal Protection 16 Clause if he or she consciously fails to redress sexual harassment by not “protect[ing] the 17 plaintiff from abusive conditions created by fellow employees.” Alaska v. EEOC, 564 F.3d 18 1062, 1069 (9th Cir. 2009) (quoting Bohen v. City of E. Chicago, Ind., 799 F.2d 1180, 1187 19 (7th Cir. 1986)); see also Bator v. State of Hawai’i, 39 F.3d 1021, 1029 (9th Cir. 1994). A 20 supervisor also commits intentional discrimination when he punishes the victim for 21 reporting the assault or gives a female victim less favorable treatment compared to the male 22 employee accused of the sexual assault. See Alaska, 564 F.3d at 1069; Fuller v. Idaho Dep’t 23 of Corr., 865 F.3d 1154, 1167 (9th Cir. 2017). 24 Van Winkle argues the only new non-conclusory allegation made by Plaintiff in the 25 FAC is her statement that Van Winkle “told McClelland he would stand by and support 26 him,” and this is not enough to allege “acts or omissions by Van Winkle that amount to an 27 intentional failure to redress her allegations of sexual harassment.” (MTD at 5.) Van 28 Winkle also argues that “Plaintiff has not adequately alleged that Warden Van Winkle 1 possessed knowledge that she had been assaulted or harassed by McClelland.” (MTD at 5.) 2 Van Winkle contends that McClelland was “placed under investigation . . . immediately 3 after allegations against him were reported,” and although McClelland was initially 4 allowed to remain in his position, he was transferred eight days after the investigation 5 began. (MTD at 6-7.) Van Winkle also states he accepted McClelland’s resignation after 6 McClelland was arrested. (MTD at 7.) Van Winkle therefore argues that “Plaintiff has not 7 adequately alleged that [he] purposefully discriminated against her.” (MTD at 7.) Van 8 Winkle distinguishes this case from Bator, where the supervisor did not investigate after 9 Plaintiff reported the sexual harassment, and Alaska, where the defendant responded to the 10 Plaintiff’s report of sexual harassment by disciplining her rather than the harasser. Bator, 11 39 F.3d at 1024; Alaska, 564 F.3d at 1069. 12 In response, Plaintiff first alleges in the FAC that Van Winkle did have knowledge 13 that she claimed McClelland sexually assaulted her. (FAC ¶¶ 70, 109.) Paragraphs 70 and 14 109 of the First Amended Complaint state that “Plaintiff and several other female 15 corrections and medical employees came forward to report their experiences of being 16 harassed or assaulted by Defendant McClelland” and that after this, “Defendant Van 17 Winkle had actual knowledge of Defendant McClelland’s unconstitutional and criminal 18 conduct toward Plaintiff.” (FAC ¶¶ 70, 109.) While these allegations, read alone, border 19 on conclusory, they are consistent with Plaintiff’s further allegations regarding Van 20 Winkle’s actions and inactions at that time. The Court finds Plaintiff’s allegations sufficient 21 to raise the plausible inference that Van Winkle had the requisite knowledge. 22 Plaintiff also points to other factual allegations she added to the FAC, including that 23 Van Winkle “never placed [McClelland] on unpaid leave, [and] never reprimanded, 24 suspended, or terminated him.” (FAC ¶ 111.) Plaintiff alleges that McClelland was “first 25 allowed . . . to continue working at ASPC-Florence without restrictions,” was “provided a 26 lateral transfer,” and was “allowed . . . to voluntarily resign.” (FAC ¶ 111.) Moreover, 27 Plaintiff alleges Van Winkle verbally supported McClelland and threatened to reprimand 28 Plaintiff if she talked about the harassment. (FAC ¶ 112.) At the motion to dismiss stage, 1 the court examines only the adequacy of a complaint’s allegations, and the Court finds 2 these allegations sufficient to state an Equal Protection claim against Van Winkle. 3 B. Qualified Immunity 4 Van Winkle also argues he is entitled to qualified immunity because Plaintiff’s 5 “allegations [do not] support a determination that [his] alleged action violated any clearly 6 established rights of which every reasonable official would have known.” (MTD at 1.) 7 A government employee alleged to have committed a § 1983 violation is protected 8 from liability by qualified immunity unless his or her conduct “violate[s] clearly 9 established statutory or constitutional rights of which a reasonable person would have 10 known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In determining whether qualified 11 immunity applies, the court looks at (1) whether the plaintiff has sufficiently pled a 12 violation of a constitutional right, and (2) “whether the right at issue was ‘clearly 13 established’ at the time of defendant’s alleged misconduct.” Pearson v. Callahan, 555 U.S. 14 223, 232 (2009). 15 When the allegation is a violation of the Equal Protection Clause, the pertinent 16 inquiry is whether the plaintiff “set forth sufficient facts . . . that she suffered purposeful, 17 invidious harassment.” Bator, 39 F.3d at 1029. The right must also be clearly established, 18 but the action itself does not need to be “held unlawful before qualified immunity is shed.” 19 Blankenhorn v. City of Orange, 485 F.3d 463, 480 (9th Cir. 2007) (quoting Wall v. Cnty. 20 of Orange, 364 F.3d 1107, 1111 (9th Cir. 2004)). The contours of the right simply must be 21 “sufficiently clear that a reasonable official would understand that what he is doing violates 22 that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 23 483 U.S. 635, 640 (1987)). While “existing precedent must have placed the statutory or 24 constitutional question beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), 25 “public officials can still be on notice that their conduct violates established law even in 26 novel factual circumstances.” Pelzer, 536 U.S. at 741. 27 Van Winkle asserts that there is no “Supreme Court precedent clearly establishing 28 that sexual harassment violates the Fourteenth Amendment” and that supervisors can be 1 held liable for employees’ sexual harassment when they fail to act. (MTD at 8.) Van Winkle 2 argues that there is only “minimal judicial guidance” and that the scope of the right is not 3 defined. (MTD at 8.) 4 However, it is clearly established by the Ninth Circuit that “[s]exual harassment 5 violates the Equal Protection Clause because, by definition, it is ‘motivated by gender.’” 6 Sampson, 974 F.3d at 1023 (quoting Bator, 39 F.3d at 1027). Bator also clarified that a 7 female employee’s right to be free from workplace sexual harassment was clearly 8 established in the early 1980s and that a reasonable supervisor would have understood this. 9 Bator, 39 F.3d at 1028-29. It is also sufficiently clear and beyond debate that “[e]ven if the 10 contours of a supervisor’s responsibility are uncertain, complete inaction in the face of 11 claimed harassment cannot be objectively reasonable conduct entitling a supervisor to 12 qualified immunity.” Bator, 39 F.3d at 1029. Alaska also stated that a supervisor commits 13 intentional discrimination when he or she punishes the victim instead of the harasser. 14 Alaska, 564 F.3d at 1069. 15 Here, Plaintiff alleges that Van Winkle allowed McClelland to remain in his position 16 and that he did not reprimand, discipline, or terminate him. (FAC at 13-14.) Instead, he 17 allegedly verbally supported McClelland and threatened to reprimand Plaintiff if she posted 18 about the matter on social media. (FAC at 14.) In this case, unlike in Bator, an investigation 19 was completed, but it was an independent investigation that did not involve Van Winkle. 20 See Bator, 39 F.3d at 1024. From Plaintiff’s allegations, the Court can plausibly infer that 21 Van Winkle took no or insufficient action to address Plaintiff’s harassment and instead 22 punished her. The contours of the right to be free from workplace sexual harassment are 23 sufficiently clear and a reasonable supervisor in Van Winkle’s position would have 24 understood that his actions violated that right. From the allegations in the FAC, Van Winkle 25 is therefore not entitled to qualified immunity. 26 . . . . 27 . . . . 28 . . . . 1 C. Attached Exhibits 2 Van Winkle also argues the Court should consider his attached exhibits. (Reply || at 3.) Consideration of the exhibits would not change the Court’s analysis of the issues 4|| presented, and thus Van Winkle’s request is moot. 5 D. Conclusions 6 Plaintiff has pled sufficient factual allegations to support her claim that Van Winkle 7\| intentionally discriminated against her in violation of the Equal Protection Clause. 8 || Plaintiff’s right to be free from sexual harassment and discrimination by supervisory 9|| officials in the workplace is clearly established, so Van Winkle is not entitled to qualified || immunity. The Court did not consider Van Winkle’s attached exhibits. 11 IT IS THEREFORE ORDERED denying Van Winkle’s Motion to Dismiss. 12|| (Doc. 49.) 13 Dated this 4th day of April, 2022. CN 14 “wok: 15 hlee— Unitgd State$District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-