Nees v. Phoenix, City of ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Brandee Nees, No. CV-21-01134-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. 14 15 16 Pending before the Court is the City of Phoenix, Jeri Williams, John Ferragamo, 17 and Jeff Cooke’s (“Defendants”) Motion to Dismiss (Doc. 8.) For the reasons below, 18 Defendants’ Motion is granted in part and denied in part.1 19 BACKGROUND 20 The Court construes all factual allegations in the Complaint as true. (Doc. 1-3.) At 21 10:19 PM on May 21, 2020, Ryan Whitaker and Plaintiff were playing a video game and 22 listening to music in the apartment they shared. (Doc. 1-3 at 5.) Their upstairs neighbor 23 called 911 to make a noise complaint. When the neighbor thought that police did not 24 respond quickly enough, the neighbor again called 911, this time saying that the altercation 25 on the floor below was “physical.” The 911 call was raised to high priority. 26 Defendants Cooke and Ferragamo (“the Officer Defendants”), officers with the 27 1 Plaintiff’s request for oral argument is denied because the parties have had an adequate opportunity to discuss the law and evidence, and oral argument will not aid the Court’s 28 decision. See Lake at Las Vegas Invrs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991). 1 Phoenix Police Department, arrived on scene and knocked on the apartment door. (Doc. 2 1-3 at 6.) Because neither officer was standing in front of the door, Mr. Whitaker could 3 not see the officers through the peephole of his apartment. Based on the time of day and 4 lack of visibility, Mr. Whitaker was concerned that there might be danger. Because of 5 these concerns, Mr. Whitaker retrieved his handgun before opening the door. His handgun 6 was by his side. Mr. Whitaker opened the door and, upon realizing that the two Defendants 7 were police officers, he pointed his handgun to the ground, put that hand behind his back, 8 and began to lower to his knees as a sign of submission. Defendant Cooke then fired three 9 shots, two of which hit Mr. Whitaker in the back and abdomen. (Doc. 1-3 at 7.) The third 10 entered the wall near where Plaintiff was standing. 11 While Mr. Whitaker lay fatally injured, Defendant Ferragamo started asking 12 Plaintiff questions. Defendant Ferragamo did not allow Plaintiff to be near Mr. Whitaker 13 as he suffered. Plaintiff was then removed from the apartment, and Mr. Whitaker died due 14 to his injuries. (Doc. 1-3 at 8.) Plaintiff filed this lawsuit against the City of Phoenix, the 15 Chief of Police, and the Officer Defendants, alleging violations of the Fourteenth 16 Amendment, negligence, negligent infliction of emotional distress, intentional infliction of 17 emotional distress, and negligent hiring, training, and supervision. (Doc. 1-3.) 18 DISCUSSION 19 Defendants request that Plaintiff’s Complaint be dismissed for failure to state a 20 claim. Plaintiff contests dismissal but requests leave to amend if dismissal is granted. 21 Because the Court grants Defendants’ Motion in part, it will also consider Plaintiff’s 22 request for leave to amend. 23 I. Motion to Dismiss 24 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 25 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 26 elements of a cause of action”; it must contain factual allegations sufficient to “raise a right 27 to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 28 (2007). When analyzing a complaint for failure to state a claim, “allegations of material 1 fact are taken as true and construed in the light most favorable to the nonmoving party.” 2 Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). Legal conclusions couched as factual 3 allegations are not given a presumption of truthfulness, however, and “conclusory 4 allegations of law and unwarranted inferences are not sufficient to defeat a motion to 5 dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998). 6 A. Substantive Due Process 7 Plaintiff alleges that Defendants violated her substantive due process rights by firing 8 into her apartment and striking the wall beside her. (Doc. 1-3 at 7); (Doc. 20 at 5.) “The 9 Fourteenth Amendment’s Due Process Clause extends only to those governmental actions 10 that deprive one of a life, liberty, or property interest of constitutional magnitude.” 11 Moreland v. Las Vegas Metro. Police Dep’t, 159 F.3d 365, 370 (9th Cir. 1998). Excessive 12 use of force claims are usually considered under the Fourth Amendment; however, when a 13 plaintiff has been neither arrested nor seized, the proper analysis is under substantive due 14 process. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843–44 (1998). To prevail on a 15 substantive due process claim in this context, “Plaintiff[] must show that an officer’s 16 conduct ‘shocks the conscience.’” Nicholson v. City of Los Angeles, 935 F.3d 685, 692 17 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). 18 The Officer Defendants, however, allege that they are entitled to qualified immunity 19 on Plaintiff’s due process claim. Qualified immunity is “an entitlement not to stand trial 20 or face the other burdens of litigation,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and 21 should be resolved “at the earliest possible stage of the litigation.” Saucier v. Katz, 533 22 U.S. 194, 200–01 (2001). To do so, courts engage in a two-prong inquiry. First, viewing 23 the facts in the light most favorable to the plaintiff, the court determines whether the 24 officers’ conduct violated a federal right. Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) 25 (per curiam); Saucier, 533 U.S. at 201. Second, the court determines whether the right was 26 “clearly established” at the time the violation occurred. Tolan, 134 S. Ct. at 1866. The 27 Court may engage the two prongs of the qualified immunity test in either order. Pearson 28 v. Callahan, 555 U.S. 223, 236 (2009). Here, because Plaintiff has failed to establish that 1 her rights were clearly established, the Court considers only the second element. 2 Plaintiff fails to establish that any liberty interest was violated by the Officer 3 Defendants’ conduct. Plaintiff expressly disclaims any argument that her liberty interest 4 is premised on a familial relationship, (Doc. 20 at 5), she does not allege that she was 5 harmed by the stray bullet, and she does not allege that the stray bullet amounted to a 6 “seizure” and thus infringed her Fourth Amendment rights. (Doc. 1-3 at 8.) Plaintiff’s 7 lone cited case, Coon v. Ledbetter, 780 F.2d 1158, 1160–61 (5th Cir. 1986), held that the 8 plaintiff had properly alleged a Fourth Amendment violation because police had fired into 9 the trailer where she was present at the time. But Plaintiff does not allege a Fourth 10 Amendment violation. The Court could find no case in the Ninth Circuit—and Plaintiff 11 cites none—where a court held that a bystander almost being shot implicates a liberty 12 interest,2 let alone one that amounts to conduct that “shocks the conscience” as required by 13 substantive due process. Harmon v. City of Arlington, 478 F. Supp. 3d 561, 571 (N.D. Tex. 14 2020) (“there is no constitutional right to be free from witnessing . . . police action.”); cf. 15 Rodriguez v. City of Fresno, 819 F. Supp. 2d 937, 950 (E.D. Cal. 2011) (granting summary 16 judgment and holding that in bystander cases in which there has been no seizure, a 17 defendant’s conduct must be measured in relation to the plaintiff, not the intended target). 18 Plaintiff has failed to establish that her rights were clearly established, and the Officer 19 Defendants are immune from liability. 20 B. Negligence/Gross Negligence 21 Arizona law does not allow recovery for negligence if liability is based on an 22 intentional act. Ryan v. Napier, 245 Ariz. 54, 60 (2018). A negligence claim, therefore, 23 must sound in “conduct that is independent of the intentional use of force.” Id. at 62. 24 Plaintiff’s negligence claim is premised on the Officer Defendants’ “discharging their 25 2 Although the Ninth Circuit has held that a show of force that results in no injury may be 26 unconstitutional under the Fourth Amendment, the Court could find no case in which that holding had been extended to the Fourteenth Amendment context for bystanders who were 27 not the targets of police action. Robinson v. Solano Cnty., 278 F.3d 1007, 1014–15 (9th Cir. 2002); cf. Beitch v. Wheeler, No. CV 15-00872-VBF (GJS), 2015 WL 13752415, at 28 *4–5 (C.D. Cal. Nov. 16, 2015) (pointing a gun at unarmed suspect sufficient to plead substantive due process claim). 1 firearm in the direction of a[n] innocent bystander” and “using excessive force and mortally 2 wounding an individual in [front] of his or her significant other.” (Doc. 1-3 at 10.) This 3 claim is clearly barred by Ryan: “[I]f a defendant acts with the intent to cause a harmful or 4 offensive touching (battery), that same act cannot constitute negligence.” Ryan, 245 Ariz. 5 at 60. Defendants’ Motion is granted on this ground. 6 C. Negligent Infliction of Emotional Distress 7 “To state a negligent infliction of emotional distress claim arising from witnessing 8 another person’s injury or death, a plaintiff must establish that she was within the ‘zone of 9 danger,’ and ‘must prove physical injury resulting from the shock of witnessing injury to a 10 closely related person.’” State Farm Mut. Auto. Ins. Co. v. Connolly ex rel. Connolly, 212 11 Ariz. 417, 420 (Ct. App. 2006) (quoting Duke v. Cochise Cnty., 189 Ariz. 35, 38 (Ct. App. 12 1996)). Arizona courts have not yet decided whether an unmarried significant other 13 constitutes a “closely related person.” “Where the state’s highest court has not decided an 14 issue, the task of the federal courts is to predict how the state high court would resolve it.” 15 Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir. 2001). “‘[A]bsent 16 controlling authority, federal courts look to existing state law’ but refrain from ‘predicting 17 potential changes’ in that law.” Barrett-Jackson Auction Co. v. Mountain Sports Int’l Inc., 18 No. CV-20-00892-PHX-SRB, 2020 WL 9349176, at *3 (D. Ariz. Sept. 9, 2020) (quoting 19 Ticknor, 265 F.3d at 939). 20 The Arizona courts have provided some guidance on what courts should consider 21 when deciding who constitutes a “closely related person.” Who may recover for NIED 22 depends “entirely on policy considerations.” Hislop v. Salt River Project Agr. Imp. & 23 Power Dist., 197 Ariz. 553, 556–57 (Ct. App. 2000). One such policy consideration “is 24 Arizona’s strong policy interest ‘in fully compensating injured plaintiffs to make them 25 whole.’” Id. at 557 (quoting Bryant v. Silverman, 146 Ariz. 41, 47 (1985)). Another is the 26 recognition that many relationships are valued in our society, “encompassing many of the 27 human virtues we cherish, and . . . therefore worthy of consideration for protection under 28 the law of torts when the emotional component of the relationship is negligently harmed.” 1 Id. “Notwithstanding these compelling reasons,” however, “courts have been slow to 2 extend protection beyond the ambit of the family” because of the “entirely unreasonable 3 burden on all human activity if the defendant who has endangered one person were to be 4 compelled to pay for the lacerated feelings of every other person disturbed by reason of it.” 5 Id. (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 366 6 (5th ed. 1984)). That policy concern is exacerbated “by the obvious difficulty of drawing 7 principled limiting distinctions once bystander recovery moves beyond the category of 8 family.” Id. Because this area of law continues to develop as modern values change, “the 9 [best] approach is to decide questions of qualifying relationships on a case-by-case basis.” 10 Id. at 558. 11 Applying the above policy principles, the Arizona Court of Appeals has noted that 12 a variety of relationships do not qualify as sufficiently close to warrant NIED relief. These 13 include pets; “close human friends; siblings; nonnuclear family members such as 14 grandparents, grandchildren, nieces, nephews, aunts, and uncles”; and “co-worker[s] and 15 friend[s].” Kaufman v. Langhofer, 223 Ariz. 249, 256 (Ct. App. 2009); Hislop, 197 Ariz. 16 at 558. Although some states have extended recovery for NIED to unmarried cohabitants, 17 Arizona has not expressly done so. See Dunphy v. Gregor, 642 A.2d 372 (N.J. 1994); 18 Graves v. Estabrook, 818 A.2d 1255 (N.H. 2003); Richmond v. Shatford, No. CA 941249, 19 1995 WL 1146885 (Mass. Sup. Ct. Aug. 8, 1995); cf. Paugh v. Hanks, 451 N.E.2d 759, 20 766–67 (1983). As aptly stated by other state courts, however, there are policy issues that 21 arise when courts extend NIED recovery outside of the family context. See Biercevicz v. 22 Liberty Mut. Ins. Co., 865 A.2d 1267 (Conn. App. Ct. 2004); Milberger v. KBHL, LLC, 23 486 F. Supp. 2d 1156 (D. Haw. 2007); Elden v. Sheldon, 758 P.2d 582 (Cal. 1988); Grotts 24 v. Zahner, 989 P.2d 415 (Nev. 1999); Lindsey v. Visitec, Inc., 804 F. Supp. 1340 (W.D. 25 Wa. 1992); Jiminez v. All Am. Rathskeller, Inc., No. 4:04-CV-1897, 2005 WL 8167979 26 (M.D. Pa. Apr. 1, 2005); Smith v. Toney, 862 N.E.2d 656 (Ind. 2007). For those reasons, 27 and because Arizona courts have indicated that even close, intimate relationships do not 28 qualify for NIED recovery, the Court declines to adopt the minority view without guidance 1 from the Arizona Supreme Court. Defendant’s Motion is granted as to Plaintiff’s claim for 2 NIED. 3 D. Intentional Infliction of Emotional Distress 4 Defendants next seek dismissal of Plaintiff’s claim for intentional infliction of 5 emotional distress (“IIED”). To prove emotional distress, the plaintiff must prove three 6 elements: “first, the conduct by the defendant must be ‘extreme” and “outrageous’; second, 7 the defendant must either intend to cause emotional distress or recklessly disregard the near 8 certainty that such distress will result from his conduct; and third, severe emotional distress 9 must indeed occur as a result of defendant’s conduct. Ford v. Revlon, Inc., 153 Ariz. 38, 10 43 (1987). “The trial court determines whether the acts at issue are sufficiently outrageous 11 to state a claim for relief; however, if reasonable minds could differ about whether the 12 conduct is sufficiently outrageous, the issue should be decided by a jury.” Johnson v. 13 McDonald, 197 Ariz. 155, 160 (Ct. App. 1999). Unlike NIED, IIED does not require a 14 familial relationship for bystander recovery: “Where the “extreme and outrageous conduct 15 . . . is directed at a third person, the actor is subject to liability if he intentionally or 16 recklessly causes severe emotional distress . . . to any . . . person who is present at the time, 17 if such distress results in bodily harm.” Restatement (Second) of Torts § 46(2)(b) (Am. L. 18 Inst. 1965). Although Arizona courts have not explicitly adopted bystander recovery for 19 IIED, they have explicitly accepted § 46 of the Restatement, Ford, 153 Ariz. at 43, and 20 “absent case law to the contrary, [Arizona] usually follows the Restatement.” Keck v. 21 Jackson, 122 Ariz. 114, 116 (1979); see also McKee v. State, 241 Ariz. 377, 384–85 (Ct. 22 App. 2016) (citing § 46(2) and holding that “Appellant ha[d] failed to allege that she was 23 present at the time of the allegedly extreme and outrageous conduct leading to her son’s 24 death, or that any of defendants’ conduct was directed at her”). 25 1. Extreme and Outrageous 26 For a defendant’s conduct to be sufficiently “extreme and outrageous” to warrant 27 liability, the conduct must be “so outrageous in character, and so extreme in degree, as to 28 go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly 1 intolerable in a civilized community.” Ford, 153 Ariz. at 43 (quoting Restatement 2 (Second) of Torts § 46 cmt. d). “[M]ere insults, indignities, threats, annoyances, petty 3 oppressions, or other trivialities” will not suffice. Midas Muffler Shop v. Ellison, 133 Ariz. 4 194, 198 (Ct. App. 1982) (quoting Restatement (Second) of Torts § 46 cmt. d). When 5 assessing the character of the defendant’s conduct, courts may consider, among other 6 things, “the position occupied by the defendant . . . [and] defendant’s knowledge that the 7 plaintiff is peculiarly susceptible to emotional distress by reason of some physical or mental 8 condition.” Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 79 (1986) (citations 9 omitted). 10 At this preliminary stage, Plaintiff has properly pleaded conduct that, if proven, a 11 reasonable jury could find sufficiently “extreme and outrageous.” Plaintiff alleges that the 12 Defendant Officers arrived at Mr. Whitaker’s residence late at night and positioned 13 themselves out of view of the apartment peephole. Defendant Cooke then proceeded to 14 shoot Mr. Whitaker several times, even though Mr. Whitaker was submitting to the 15 Defendant Officers’ demands.3 Clearly, the unjustified killing of a human being, as has 16 been plead by Plaintiff, is “intolerable” in a civilized community and goes far beyond 17 “mere insults” or “annoyances.” Restatement (Second) § 46 cmt. d. Defendants seem to 18 concede this point by arguing that it was not unreasonable for the Defendant Officers to 19 “draw[] their weapons” or “have concerns about the armed status of the unknown person,” 20 yet remaining silent—and citing no case—as to whether the unjustified shooting itself 21 amounted to extreme and outrageous conduct. Even the Restatement seems to contemplate 22 liability for police in this situation: “The extreme and outrageous character of the conduct 23 may arise from an abuse by the actor of a position, . . . which gives him actual or apparent 24 authority over the other.” Restatement (Second) § 46 cmt. e. Other courts have held 25 similarly. Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001) (holding that an 26 unjustified police shooting of pet dog “would permit a trier of fact to return a verdict for 27 3 Plaintiff points to nothing about Defendant Ferragamo’s conduct that would reach the 28 level of “extreme and outrageous.” This claim is therefore dismissed as to Defendant Ferragamo. 1 the plaintiff” on IIED claim); Estate of Sauceda v. City of N. Las Vegas, 380 F. Supp. 3d 2 1068 (D. Nev. 2019) (denying summary judgment and holding that police shooting of an 3 armed, fleeing suspect could amount to outrageous conduct); Sullivan v. Warminster Twp., 4 765 F. Supp. 2d 687 (E.D. Pa. 2011) (holding that police shooting of unarmed suspect 5 could amount to extreme and outrageous conduct); Estate of Randolph v. City of Wichita, 6 459 P.3d 802 (Kan. Ct. App. 2020) (“The intentional and unprivileged action of a law 7 enforcement officer in firing four shots into a person’s chest in full view of that person’s 8 family members would satisfy any acceptable definition of extreme and outrageous.”). But 9 see Thompson v. Williamson Cnty., 965 F. Supp. 1026 (M.D. Tenn. 1997) (holding that 10 police shooting of suspect with machete did not amount to extreme and outrageous conduct 11 as a matter of law). Plaintiff has plausibly alleged extreme and outrageous conduct. 12 2. Intent 13 To show intent, plaintiff must demonstrate that the defendant “intentionally or 14 recklessly” caused severe emotional distress. In Arizona, the requirement has been cast as 15 the “inten[t] to cause emotional distress or [the] reckless[] disregard [of] the near certainty 16 that such distress will result.” Ford, 153 Ariz. at 43. Plaintiff’s claim for IIED can be cast 17 both as a direct and bystander claim. First, Plaintiff alleges that Defendant Cooke knew 18 that there was more than one person in the apartment, (Doc. 1-3 at 5), and thus recklessly 19 disregarded “the near certainty” that emotional distress would result from his allegedly 20 unjustified shooting into an apartment in which he knew another was present. Additionally, 21 because Plaintiff was present at the time of the incident, Plaintiff may also show that 22 Defendant Cooke recklessly disregarded “the near certainty” of emotional distress by 23 unjustifiably shooting Mr. Whitaker, which actually caused Plaintiff to suffer severe 24 emotional distress, including bodily harm. The Court finds that Plaintiff’s claims survive 25 under either theory. 26 Defendants’ argument that Plaintiff was not “present” within the meaning of the 27 Restatement is not well taken. Neither party contests that Plaintiff was in the apartment 28 when the shooting took place in the doorway. Moreover, the Complaint clearly states that 1 “Plaintiff was present and . . . witnessed the injuries to Mr. Whitaker.” (Doc. 1-3 at 10 2 (emphasis added).) The Complaint also states that one of Defendant Cooke’s bullets 3 “entered the wall near where Plaintiff was standing” and that “Plaintiff appeared in the 4 doorway just after [the shooting].” (Doc. 1-3 at 7.) This is sufficient, at the Motion to 5 Dismiss stage, to plead presence. 6 3. Severe Emotional Distress 7 Whether a plaintiff has suffered sufficiently severe emotional distress is analyzed 8 on a case-by-case basis. Lucchesi, 149 Ariz. at 79. To prevail on the claim, “the distress 9 inflicted [must be] so severe that no reasonable man could be expected to endure it.” 10 Restatement (Second) of Torts § 46 cmt. j; see also Midas, 133 Ariz. at 199 (“[A] line of 11 demarcation should be drawn between conduct likely to cause mere ‘emotional distress’ 12 and that causing ‘severe emotional distress.’” (quoting Slocum v. Food Fair Stores of Fla., 13 Inc., 100 So. 2d 396, 397 (Fla. 1958))). Neither physical injury nor disabling response is 14 required to constitute “severe emotional distress.” Skousen v. Nidy, 90 Ariz. 215, 219 15 (1961). Bystander claims of IIED require a showing of bodily harm in addition to severe 16 emotional distress. Restatement (Second) of Torts § 46(2)(b). Although the Court must 17 determine whether evidence of severe emotional distress can be found, a jury must 18 determine whether such distress actually exists and whether the extreme and outrageous 19 conduct caused it. Midas, 133 Ariz. at 197; Savage v. Boies, 77 Ariz. 355, 358 (1954). 20 Plaintiff alleges that she has suffered from “PTSD, anxiety, nervousness, and 21 depression” since the shooting. (Doc. 1-3 at 10–11.) The DSM-5 lists the following as 22 symptoms of PTSD: recurrent and intrusive memories or nightmares of the traumatic event, 23 social withdrawal or estrangement, stress or impairment of relationships, physiological 24 reactions to reminders of the traumatic event, and self-blame.4 At the Motion to Dismiss 25 stage, Plaintiff’s allegations of PTSD, anxiety, nervousness, and depression are sufficient 26 to state a claim for IIED. See Pankratz v. Willis, 155 Ariz. 8, 12, 16–17 (Ct. App. 1987) 27 4 The DSM-5 is a proper object of judicial notice. Fed. R. Evid. 201; Shaw v. Life Ins. Co. 28 of N.A., 144 F. Supp. 3d 1114, 1126–27 (C.D. Cal. 2015) (collecting cases); Gibson v. Walden Univ., LLC, 66 F. Supp. 3d 1322, 1325 n.2 (D. Or. 2014). 1 (anger, depression, headaches, hemorrhoids, and inability to work sufficient to support jury 2 verdict of IIED); Tavilla v. City of Phx., No. 1 CA–CV 10–0429, 2011 WL 4794940, at 3 *7–8 (Ct. App. Oct. 11, 2011) (PTSD, depression, nervousness, and anxiety sufficient to 4 support jury verdict for IIED); Farsakian v. Kent, No. CV-20-00141-PHX-MTL, 2020 WL 5 6363729, at *4 (D. Ariz. Oct. 29, 2020) (terror, crying, weight loss, and loss of appetite 6 sufficient to state a claim for IIED); Monaco, 196 Ariz. 299, 302–03 (holding that Arizona 7 courts require a showing of bodily harm to establish NIED, and finding that trouble 8 sleeping, social withdrawal, sleepwalking, PTSD, and depression was sufficient to show 9 bodily harm and to submit NIED claim to jury); Eichenberger v. Falcon Air Express Inc., 10 No. CV–14–00168–PHX–DGC, 2014 WL 3819355 (D. Ariz. Aug. 4, 2014) (emotional 11 distress, sleeplessness, depression, loss of focus and concentration, pain and suffering, 12 inconvenience, mental anguish, embarrassment, frustration, humiliation, and the loss of 13 enjoyment of life sufficient to plead claim for NIED); Restatement (Second) of Torts § 46 14 cmt. k (“[S]hock, illness, or other bodily harm . . . affords evidence that the distress is 15 genuine and severe.”). Defendants’ Motion is denied as to Plaintiff’s claim for IIED. 16 E. Immunity 17 Because the Court has found that Plaintiff has sufficiently pleaded a claim against 18 Defendant Cooke, it must now decide whether the Defendant City can be held liable for 19 Defendant Cooke’s conduct. Arizona Revised Statutes § 12-820.05(B) limits the liability 20 of public entities for “losses that arise out of and are directly attributable to an act or 21 omission determined by a court to be a criminal felony by a public employee unless the 22 public entity knew of the public employee’s propensity for that action.” Because Plaintiff 23 does not allege that the City knew of Defendant Cooke’s propensity, the material question 24 is whether Defendant Cooke’s conduct amounted to a “criminal felony.”5 Homicide is a 25 felony in Arizona. Ariz. Rev. Stat. §§ 13-1101 to -1105. A law enforcement officer’s use 26 of deadly force, however, may be justified and preclude criminal liability: 27 5 This issue is also dispositive of Plaintiff’s claim for negligent hiring, training, and 28 supervision. Gallagher v. Tucson Unified Sch. Dist., 237 Ariz. 254 (Ct. App. 2015). 1 The use of deadly force by a peace officer against another is justified . . . when the peace officer reasonably believes that it is necessary . . . [t]o defend 2 himself or a third person from what the peace officer reasonably believes to 3 be the use or imminent use of deadly physical force. 4 Id. § 13-410(C)(1). The Court declines to decide whether Defendant Cooke’s conduct was 5 a “felony” based solely on Plaintiff’s allegations. Whether the shooting was justified, 6 especially in light of the fact that Mr. Whitaker possessed a firearm, is more properly 7 considered upon a complete evidentiary record. Korff v. City of Phx., No. CV-13-02317- 8 PHX-SRB, 2014 WL 12889794, at *2 (D. Ariz. Mar. 26, 2014) (“The Court cannot 9 conclude from the allegations in the Amended Complaint that the City of Phoenix has 10 statutory immunity . . . .”); Flores v. Maricopa Cnty., No. CV–09–0945–PHX–DGC, 2009 11 WL 2169159, at *3 (D. Ariz. July 17, 2009) (holding that whether the defendants’ conduct 12 constituted a felony “should be decided after more thorough briefing by the parties in the 13 context of a motion for summary judgment”); Dominguez v. Denny, No. CV 10–1173– 14 PHX–MHM, 2011 WL 905812, at *5 (D. Ariz. Mar. 15, 2011) (“Whether the alleged acts 15 or omissions committed, however, constitute a felony such that the City would be immune 16 under the statute cannot be determined at [the motion to dismiss] stage. . . .”). Defendants’ 17 Motion is denied as to Counts IV and V. 18 Defendants’ argument for dismissal of Plaintiff’s negligent hiring, training, and 19 supervision claim rests solely on its statutory immunity,6 which the Court has already 20 denied. (Doc. 8 at 12–13.) Because the Court will grant Plaintiff leave to amend her 21 Complaint, however, the Court will briefly address this claim. Importantly, “[i]n order for 22 the employer to be held liable for negligent hiring, retention or supervision, the employee 23 must have committed a tort.” Mulhern v. City of Scottsdale, 165 Ariz. 395, 398 (Ct. App. 24 1990). Here, the only tort for which Plaintiff has stated a claim is IIED, which requires 25 that the defendant’s conduct be “extreme and outrageous.” The Court is doubtful that any 26 conduct that meets such a high bar, at least in this context, would not be “felonious” under 27 6 Defendants do argue that the Complaint raises “boilerplate conclusory statements” in support of this claim in its Reply, but the Court will not consider arguments raised for the 28 first time in a Reply. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”). 1 Arizona law. Regardless, the Court will not dismiss this claim at this time. 2 II. Leave to Amend 3 Plaintiff has asked for leave to amend should the Court grant Defendant’s Motion. 4 (Doc. 20 at 16.) Federal Rule of Civil Procedure 15(a) provides that leave to amend shall 5 be freely given when “justice so requires.” Fed. R. Civ. P. 15(a). “But a district court need 6 not grant leave to amend where the amendment: (1) prejudices the opposing party; (2) is 7 sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” 8 AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). Leave 9 to amend lies within “the sound discretion of the trial court”; however, Rule 15’s policy 10 favoring amendment “should be applied with extreme liberality.” DCD Programs, Ltd. v. 11 Leighton, 833 F.2d 183, 186 (9th Cir. 1987). Because Defendants offer no argument 12 against amendment, and because the Court does not believe amendment is futile, Plaintiff 13 request to amend is granted. 14 CONCLUSION 15 Plaintiff has failed to state a claim for which relief can be granted as to the § 1983 16 and negligence claims against all Defendants; the NIED claim against Defendants City of 17 Phoenix, Ferragamo, and Cooke; and the IIED claim against Defendant Ferragamo. She 18 has stated a claim, however, for IIED against Defendants City of Phoenix and Cooke. The 19 Court declines to dismiss the negligent hiring, training, and supervision claim against 20 Defendants City of Phoenix and Jeri Williams at this time. Plaintiff may amend her 21 Complaint. 22 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (Doc. 8) is 23 GRANTED in part and DENIED in part. All claims are dismissed except Plaintiff’s IIED 24 claim against Defendants City of Phoenix and Cooke, and the negligent hiring, training, 25 and supervision claim against Defendants City of Phoenix and Jeri Williams. 26 IT IS FURTHER ORDERED that Plaintiff has 30 days from the date of this order 27 to file an Amended Complaint. If Plaintiff fails to file an Amended Complaint, the 28 remaining Defendants shall file an Answer within 20 days. 1 IT IS FURTHER ORDERED that if Plaintiff fails to file an Amended Complaint || within 30 days from the date of this Order, the Clerk of Court shall terminate Defendant 3 || Ferragamo from this case. 4 Dated this 28th day of December, 2022. ° Wars ) 6 A Whacrsay Fotos 7 Chief United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -14-