E v. Arizona, State of ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert E., No. CV15-00272-PHX-DGC 10 Plaintiff, ORDER 11 v. 12 State of Arizona, et al., 13 Defendants. 14 15 This case concerns the alleged wrongful removal of a minor child, A.E., from his 16 father’s custody; his placement into foster care; and his alleged molestation while in the 17 foster care system. A.E.’s claims have since been dismissed without prejudice (Doc. 145), 18 and the only remaining claims are those asserted by A.E.’s father, Robert E. Defendants 19 separately move for summary judgment. Docs. 160, 162. Defendant Tungland 20 Corporation joins in the motion filed by the State Defendants and Angel Doe. Doc. 166. 21 Plaintiff has not responded. The Court will grant the motions for summary judgment.1 22 I. Summary Judgment Standard. 23 A party seeking summary judgment “bears the initial responsibility of informing the 24 district court of the basis for its motion, and identifying those portions of [the record] which 25 it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. 26 Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the evidence, 27 viewed in the light most favorable to the nonmoving party, shows “that there is no genuine 28 1 This case was recently transferred to the undersigned judge with the motions already pending. 1 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 2 Fed. R. Civ. P. 56(a). Rule 56 further provides: 3 If a party fails to . . . properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for 4 purposes of the motion [or] grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that 5 the movant is entitled to it[.] 6 Fed. R. Civ. P. 56(e)(3). Thus, the party opposing summary judgment “may not rest upon 7 the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific 8 facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith 9 Radio Corp., 475 U.S. 574, 586 n.11 (1986) (emphasis added); see LRCiv 56.1(b) 10 (requiring the party opposing summary judgment to present evidence that establishes a 11 genuine issue of material fact or otherwise precludes judgment in favor of the moving 12 party). 13 II. Undisputed Facts. 14 Defendants moved for summary judgment on July 25, 2019. Docs. 160, 162. 15 Plaintiff has not responded to the motions despite being warned that failure to demonstrate 16 a genuine issue of material fact may entitle Defendants to judgment as a matter of law 17 under Rule 56. Doc. 164. Based on Defendants’ statements of facts and supporting 18 evidence (Docs. 161, 163), the following facts are undisputed. See Fed. R. Civ. P. 56(e)(3). 19 On July 8, 2015, Plaintiffs filed an amended complaint against Defendants seeking 20 damages on claims of negligence and violation of civil rights under 42 U.S.C. § 1983 for 21 incidents that took place while A.E. was in state custody. Doc. 26. Plaintiffs allege A.E. 22 was unlawfully taken from his family, placed in dangerous conditions, exposed to “sexual, 23 mental, and physical abuse,” and “[d]rugged . . . with harmfully inappropriate 24 psychotropics notwithstanding the denial of parental consent.” Doc. 1-1 at 11-12. 25 On October 14, 2016, multiple defendants filed a joint motion to dismiss for lack of 26 prosecution. Doc. 116. The Court granted the motion and dismissed the case with 27 prejudice. Doc. 119. On appeal, the Ninth Circuit reversed and remanded with instructions 28 to impose a sanction other than dismissal with prejudice. Docs. 128, 128-1 at 2. 1 On August 21, 2018, Plaintiff A.E. filed a motion to dismiss, which the Court 2 granted without prejudice as to all claims. Docs. 145, 148. In December 2018, the Court 3 denied motions for summary judgment filed by Defendant Tungland Corporation 4 (Doc. 130) and Defendants State of Arizona, Brandy Fuller, Danielle Reiher, Rosanna 5 Mendoza, John M. Testa, Lisa Wilson, and Defendant Angel Doe. Docs. 130, 133. In 6 denying the motions, the Court, in the interests of justice, reopened discovery “for a limited 7 period of time in order to allow the remaining parties in this case to move forward with 8 litigating their claims.” Doc. 146. 9 Since the Court’s order, Plaintiff has failed to participate in this litigation. 10 Doc. 161 ¶ 1. Notably, Plaintiff has failed to respond to requests from admissions both 11 from Defendant Angel Doe and the State Defendants, has failed to attend his deposition on 12 April 23, 2019, has served no discovery, and has not contacted any attorney of record in 13 this case. Id. ¶ 2. 14 III. Discussion. 15 A. State Defendants’ and Defendant Angel Doe’s Motion. 16 1. Negligence Claim. 17 Plaintiff asserts negligence claims against the State Defendants and Angel Doe. 18 Doc. 26 at 6. Defendants argue that Plaintiff has failed to produce any evidence that would 19 create a triable issue on the negligence claims. Under Arizona law, a plaintiff is required 20 to prove (1) a duty requiring the defendant to conform to a certain standard of care, (2) a 21 breach by the defendant of that standard, (3) a causal connection between the defendant’s 22 conduct and the resulting injury, and (4) actual damages. Gipson v. Kasey, 150 P.3d 228, 23 230 (Ariz. 2007). 24 Plaintiff has produced no evidence establishing any of the required elements of a 25 negligence claim. In failing to respond to Defendants’ motion and participate in this 26 litigation, Plaintiff has established no triable issues with respect to his negligence claim. 27 See Matsushita, 475 U.S. at 586 n.11 (requiring non-moving party to set forth specific facts 28 showing that there is a genuine issue for trial). The Court accordingly will grant summary 1 judgment in favor of the State Defendants and Angel Doe on the negligence claim. See 2 Celotex, 477 U.S. at 323 (noting that summary judgment is warranted where the party with 3 the burden of proof has failed to present evidence creating a triable issue). 4 2. § 1983 Claim. 5 Plaintiff also asserts a § 1983 claim against the State Defendants and Angel Doe. 6 To prevail on a § 1983 claim, a plaintiff must show that acts by the defendants under color 7 of state law deprived him of federal rights, privileges, or immunities, and caused him 8 damage. Thornton v. City of St. Helens, 425 F.3d 1158, 1163-64 (9th Cir. 2005) (citing 9 Shoshone-Bannock Tribes v. Idaho Fish & Game Comm'n, 42 F.3d 1278, 1284 (9th 10 Cir. 1994)). Plaintiff must also allege that he suffered a specific injury as a result of the 11 conduct of a particular defendant and an affirmative link between the injury and the conduct 12 of that defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 13 Defendants argue that Angel Doe is not a state actor under § 1983. Doc. 160 at 7. 14 To determine whether a person is a state actor, the Ninth Circuit recognizes four tests, 15 including: (1) public function, (2) joint action, (3) governmental compulsion or coercion, 16 and (4) governmental nexus. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) 17 (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999). 18 “Satisfaction of any one test is sufficient to find state action, so long as no countervailing 19 factor exists.” Id. (quoting Lee v. Katz, 276 F.3d 550, 554 (9th Cir. 2002)). 20 Angel Doe was a private actor also in state custody (Doc. 160 at 2), and Plaintiff 21 has provided no evidence indicating that he was endowed by the State with any public 22 function, that he was a joint-participant with the State in any way, that he was under any 23 compulsion or coercion from the state, or that his actions have any substantial nexus with 24 the State. See Kirtley, 326 F.3d at 1092-95. The Court agrees with Defendants that Angel 25 Doe is not a state actor and will grant summary judgment in Angel Doe’s favor. 26 Nor is the State a proper Defendant for purposes of the § 1983 claim. The United 27 States Supreme Court has clearly held that a State is not a person within the meaning of 28 1|| § 1983. See Will v. Michigan Dep’t State Police, 491 U.S. 57, 71 (1989). The Court will || grant summary judgment in favor of the State. 3 Finally, Plaintiff has presented no evidence indicating any triable issues with respect 4|| to the individual State Defendants. Plaintiff has not established any specific injury || traceable to the conduct of a particular defendant. See Rizzo, 423 U.S. at 371-72, 377. The || Court will grant summary judgment in favor of the individual State Defendants. 7 B. Defendant Tungland Corporation’s Motion. 8 In addition to joining the State Defendants’ motion (Doc. 166), Tungland 9|| Corporation argues that Plaintiffs claim against it fails for lack of evidence. The Court agrees. Arizona law requires a plaintiff to prove a duty of care owed to the plaintiff. |} Gipson, 150 P.3d at 230. Plaintiff has presented no evidence whatsoever indicating what duty Tungland Corporation owed to a birth parent. The Court will grant summary 13} judgment in favor of Defendant Tungland Corporation. IV. Conclusion. 15 Plaintiff has presented no evidence showing a genuine factual issue for trial. The 16|| Court will grant summary judgment on all remaining claims. See Matsushita, 475 □□□□ 17|| at 586 n.11; LRCiv 56.1(b). 18 IT IS ORDERED: 19 1. The motions for summary judgment (Docs. 160, 162) are granted. 20 2. Defendants’ joint motion for summary disposition (Doc. 169) is granted. 21 3. The Clerk is directed to enter judgment in accordance with this Order and 22 terminate this action. 23 Dated this 5th day of November, 2019. 24 . Dau 6 Coup □□□ 26 David G. Campbell 27 Senior United States District Judge 28 _5-