White v. Jones ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tyshena White, No. CV-23-00322-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Yolanda Yvette Jones, et al., 13 Defendants. 14 15 16 On October 2, 2022, Plaintiff Tyshena White filed this action in Maricopa County 17 Superior Court against her mother, Defendant Yolanda Jones (who lives in California), and 18 Defendant Alysia Long, who works for Arizona’s Department of Child Safety. (Doc. 1-3 19 at 5-15.) White alleges that Jones made a false report of abuse to DCS; that Long 20 investigated the report; that after discovering no evidence substantiating Jones’ report, 21 DCS chose not to file a juvenile dependency action; and that, without any court order, Jones 22 drove to Arizona and took White’s two children with her back to California. (Id.) Based on 23 these allegations, White brings unspecified state law tort claims and a claim under 42 24 U.S.C. § 1983 for violations of her Fourteenth Amendment due process rights. 25 On February 22, 2023, Long removed the case to this Court on the basis of federal 26 question jurisdiction. (Doc. 1.) On March 21, 2023, this Court issued an order noting that 27 Jones was served on October 22, 2022, but had not appeared or responded to the complaint. 28 (Doc. 11.) The Court gave White a week to file either a status report concerning her case 1 against Jones, or an application or entry of default against Jones, and directed the Clerk to 2 terminate Jones as a defendant for failure to prosecute if White did not comply. (Id.) On 3 May 4, 2023, the Clerk terminated Jones as a defendant because White filed neither a status 4 report nor an application for entry of default. (Doc. 16.) As a result, Long is the only 5 remaining defendant in this case. 6 Now before the Court is Long’s motion to dismiss (Doc. 8), which is fully briefed 7 (Doc. 14, 15) and will be granted. 8 First, to the extent White is attempting to bring any state law tort claims against 9 Long, those claims must be dismissed because White did not serve Long with a Notice of 10 Claim. See A.R.S. § 12-821.01(A) (“Persons who have claims against a public entity, 11 public school or a public employee shall file claims with the person or persons authorized 12 to accept service for the public entity, public school or public employee as set forth in the 13 Arizona rules of civil procedure within one hundred eighty days after the cause of action 14 accrues.”); Deer Valley Unified School Dist. No. 97 v. Houser, 152 P.3d 490, 492 (Ariz. 15 2007) (“Claims that do not comply with A.R.S. § 12-821.01.A are statutorily barred.”). 16 Second, White’s complaint fails to plausibly allege that Long violated her due 17 process rights. The Fourteenth Amendment “guarantee[s] that parents and children will not 18 be separated by the state without due process of law except in an emergency.” Wallis v. 19 Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). Here, however, White does not allege that 20 she was separated from her children by the state. In fact, she alleges the opposite. She 21 claims her mother made a false report of child abuse to DCS, that DCS assigned Long to 22 investigate, that Long discovered no evidence supporting the report, and therefore DCS 23 chose not to file a juvenile dependency action. White claims that her mother “kidnapped” 24 her children, but she makes clear that her mother acted without a court order. Rather than 25 state a plausible Fourteenth Amendment claim, White’s allegations affirmatively show that 26 any separation from her children she experienced was not due to any action by the state. 27 Although ordinarily the Court would freely grant leave to amend, the Court finds 28 further amendment would be futile. This is not a case in which the complaint fails to state || aclaim because it does not include sufficient factual detail. This, instead, is a case in which 2|| the complaint’s well-pled factual allegations affirmatively disprove the claim alleged. || White could not state a claim to relief by alleging more facts; she would have to allege completely different facts that flatly contradict what she has already presented to the Court. 5 || For these reasons, 6 IT IS ORDERD that Long’s motion to dismiss (Doc. 8) is GRANTED. The Clerk shall terminate this case. 8 Dated this 29th day of September, 2023. 9 10 ll {Z, 12 _- {UO 13 Upited States Dictic Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-