Ring v. Chandler, City of

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Nancy Ring, ) No. CV-24-00630-PHX-SPL ) [9] ) 10 Plaintiff, ) ORDER vs. ) ) [11] ) City of Chandler, et al., ) [12] ) 13 Defendants. ) ) 14 ) 15 Before the Court is Defendants City of Chandler, et al.’s (“Defendants”) Motion to 16 Dismiss Plaintiff’s Second Amended Complaint (“SAC”) (Doc. 29), Plaintiff’s Response 17 (Doc. 33), and Defendants’ Reply (Doc. 34). The Court now rules as follows. 18 I. BACKGROUND 19 Plaintiff Nancy Ring (“Plaintiff”) brings various claims against Defendants on 20 behalf of herself and as the representative of her son’s estate. Her son, decedent Richard 21 Allyn Ring, Jr. (“Decedent”), died in an incident with City of Chandler police officers on 22 March 29, 2023. (Doc. 27 at 4). Decedent suffered from mental illness and had recently 23 used methamphetamine. (Id.). On the evening of March 29, 2023, he allegedly robbed an 24 Ace Hardware Store, fled to a nearby residential area, and entered two residences. (Id. at 25 5). Several residents in the neighborhood called 911, and City of Chandler Police Officers 26 Buchanan, Wagner, Figley, Deanda, and Prendergast arrived on the scene. (Id.). The 27 officers surrounded the second residence, and Decedent entered the backyard with 28 significant, self-inflicted injuries to his throat area and holding a long-bladed, bloodied 1 kitchen knife. (Id.). Decedent moved forward, either from falling due to his injuries or 2 intentionally. (Id.). Officer Buchanan shot Decedent multiple times, and Officer Wagner 3 tased Decedent. (Doc. 27 at 5). Plaintiff was unresponsive and died on scene. (Id.). The 4 parties dispute what happened next: Plaintiff alleges that the officers failed to contact 5 emergency medical responders and left Decedent’s body outside for several hours (Id.), 6 whereas Defendants allege that Officer Deanda called for paramedics within seconds of 7 the shooting and Officer Wagner immediately ran to get medical gear to provide aid to 8 Decedent before realizing Decedent did not have a pulse. (Doc. 29 at 4). 9 Plaintiff filed suit on March 22, 2024. (Doc. 1). Plaintiff filed her SAC on July 10, 10 2024, bringing various federal and state law claims against the City of Chandler, Officers 11 Buchanan, Wagner, Figley, Deanda, and Prendergast (the “Officers”) in their individual 12 and official capacities, and Does 1–50. (Doc. 27). Plaintiff’s claims include Count One – 13 Excessive Force in Violation of the Fourth Amendment against the Officers; Count Two – 14 Fourteenth Amendment Violation of Plaintiff’s Civil Rights to a Familial Relationship 15 against the Officers; Count Three – Negligent Wrongful Death in Violation of ARS § 1216 611 against all Defendants; Count Four – Intentional Wrongful Death in Violation of ARS 17 § 12-611 against all Defendants; Count Five – Negligence pursuant to ARS § 12-821.01(A) 18 against all Defendants; and Count Six – Assault and Battery in Violation of ARS § 13-20 19 and ARS § 13-1203(A)(1) against all Defendants. (Doc. 27). On July 24, 2024, Defendants 20 filed this Motion to Dismiss for Failure to State a Claim under Fed. R. Civ. P. 12(b)(6). 21 (Doc. 29). The Motion has been fully briefed. (Docs. 33, 34). 22 II. LEGAL STANDARD 23 “To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 24 meet the requirements of Rule 8.” Jones v. Mohave Cnty., No. CV 11-8093-PCT-JAT, [25] 2012 WL 79882 , at *1 (D. Ariz. Jan. 11, 2012); see also Int’l Energy Ventures Mgmt. v. 26 United Energy Grp., 818 F.3d 193, 203 (5th Cir. 2016) (Rule 12(b)(6) provides “the one 27 and only method for testing” whether pleading standards set by Rule 8 and 9 have been 28 met); Hefferman v. Bass, 467 F.3d 596 , 599–600 (7th Cir. 2006) (Rule 12(b)(6) “does not 1 stand alone,” but implicates Rules 8 and 9). Rule 8(a)(2) requires that a pleading contain 2 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. 3 R. Civ. P. 8(a)(2). A court may dismiss a complaint for failure to state a claim under Rule 4 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts 5 alleged under a cognizable legal theory. In re Sorrento Therapeutics, Inc. Sec. Litig., 97 6 F.4th 634 , 641 (9th Cir. 2024) (citation omitted). A claim is facially plausible when it 7 contains “factual content that allows the court to draw the reasonable inference” that the 8 moving party is liable. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Factual allegations in 9 the complaint should be assumed true, and a court should then “determine whether they 10 plausibly give rise to an entitlement to relief.” Id. at 679 . Facts should be viewed “in the 11 light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 12 1017, 1019 (9th Cir. 2013). “Nonetheless, the Court does not have to accept as true a legal 13 conclusion couched as a factual allegation.” Jones, 2012 WL 79882 , at *1 (citing Papasan 14 v. Allain, 478 U.S. 265, 286 (1986)). 15 III. DISCUSSION 16 Defendants raise various arguments for the dismissal of Plaintiff’s multiple causes 17 of action. Additionally, Defendants move for the dismissal of all “John and Jane Doe” 18 Defendants. (Doc. 29 at 16). Defendants seek to submit evidence outside the pleadings to 19 support their claims. This Court will first determine whether it may consider the exhibits 20 attached to Defendants’ Motion before addressing Defendants’ arguments that Plaintiff’s 21 SAC fails to state claims upon which relief may be granted and that the dismissal of all 22 Doe Defendants is warranted. 23 A. Evidence Outside the Pleadings 24 A threshold issue central to Defendants’ arguments is whether Defendants can 25 introduce extrinsic evidence at the Motion to Dismiss stage. Specifically, the evidence at 26 issue includes: Exhibits 1–3, the Officers’ body camera footage; Exhibit 4, the Medical 27 Examiner Report; Exhibit 5, Plaintiff’s Notice of Claim; Exhibit 6, the Application for 28 Informal Appointment of Personal Representative; and Exhibit 7, the Registrar’s Denial. 1 (Doc. 29-1). 2 Generally, a district court may not consider extrinsic evidence in determining the 3 legal sufficiency of a complaint’s allegations under a Rule 12(b)(6) motion. Lee v. City of 4 Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). “[I]f a district court considers evidence 5 outside the pleadings, it must normally convert the 12(b)(6) motion into a Rule 56 motion 6 for summary judgment.” United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). 7 Because Defendant failed to follow the Federal Rules of Civil Procedure or the Court’s 8 local rules for filing a Motion for Summary Judgment, the Court declines to convert the 9 Motion to Dismiss into a Motion for Summary Judgment pursuant to Rule 12(d) of the 10 Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(d) (“If on a motion under Rule 11 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, 12 the motion must be treated as one for summary judgment under Rule 56”). 13 A court may consider outside evidence without converting the motion to a summary 14 judgment motion under two circumstances. One, a court may take judicial notice of matters 15 of public record in considering a 12(b)(6) motion. Khoja v. Orexigen Therapeutics, Inc., [16] 899 F.3d 988, 999 (9th Cir. 2018). Two, a court may consider evidence on which the 17 complaint necessarily relies if its authenticity is uncontested under the incorporation by 18 reference doctrine. Sams v. Yahoo! Inc., 713 F.3d 1175, 1179 (9th Cir. 2013). 19 A court may take judicial notice of adjudicative facts only if they are “not subject 20 to reasonable dispute.” Fed. R. Evid. 201(b). The Ninth Circuit has held that “[c]ourts may 21 take judicial notice of some public records, including the ‘records and reports of 22 administrative bodies.’” Ritchie, 342 F.3d at 909 (citing Interstate Nat. Gas Co. v. S. Cal. 23 Gas Co., 209 F.2d 380, 385 (9th Cir. 1953)). However, courts may not take judicial notice 24 of facts that are in dispute or subject to varying interpretations. See generally Sanz v. City 25 of Vallejo, 2:19-CV-02134-TLN-DB, 2021 WL 2682162 , at *3 (E.D. Cal. June 30, 2021). 26 Under the incorporation by reference doctrine, courts may consider extrinsic 27 evidence, including police body camera recordings, that the complaint necessarily relies 28 upon, if the evidence’s authenticity is not contested. Lihosit v. Flam, No. CV-15-012241 PHX-NVW, 2016 WL 2865870 , at *3 (D. Ariz. May 17, 2016). The complaint must “refer 2 extensively” to the extrinsic evidence or the evidence must form the basis of or be integral 3 to plaintiff’s claim in order to be admissible under the incorporation by reference doctrine. 4 Ritchie, 342 F.3d at 907 . Mere mention of the existence of a document is insufficient. Id. 5 at 908. Other district courts in the Ninth Circuit have found it appropriate to consider 6 evidence, such as body camera footage, when the “complaint necessarily relie[d] on the 7 circumstances surrounding” the arrest and the plaintiff did not dispute the video’s 8 authenticity. Lihosit, 2016 WL 2865870 , at *3; see also Covert v. City of San Diego, No. 9 15-CV-2097 AJB (WVG), 2017 WL 1094020 , at *5 (S.D. Cal. Mar. 23, 2017) (considering 10 footage that “reveals the circumstances surrounding Plaintiff’s claims” and was undisputed 11 by Plaintiff). However, if the extrinsic evidence “merely creates a defense to the well-pled 12 allegations in the complaint, then that document did not necessarily form the basis of the 13 complaint.” Khoja, 899 F.3d at 1002 . “Submitting documents not mentioned in the 14 complaint to create a defense is nothing more than another way of disputing the factual 15 allegations in the complaint,” and deprives the plaintiff of the “opportunity to respond to 16 the defendant’s new version of the facts.” Id. at 1003 . 17 i. Exhibits 1-3: Police Body Camera Footage 18 Exhibits 1–3 consist of Officers Buchanan, Deana, and Prendergast’s body camera 19 footage of the incident. While courts may consider police body camera footage as matters 20 of public record, such consideration is only appropriate if the evidence is not in dispute. 21 Muhaymin v. City of Phoenix, No. CV-17-04565-PHX-SMB, 2019 WL 699170 , at *3 (D. 22 Ariz. Feb. 20, 2019). Here, Plaintiff has not had the opportunity to review the footage and 23 thus the authenticity of the footage is still up to dispute. (Doc. 33 at 4). As such, it is 24 inappropriate for this Court to take judicial notice of Exhibits 1–3. 25 Additionally, in the present case, Plaintiff’s SAC does not refer to or rely upon the 26 body camera footage. The Complaint arguably necessarily relies on the circumstances 27 surrounding the incident captured in the footage. However, as noted, Plaintiff asserts that 28 she has not had the opportunity to review the evidence and disputes its introduction at this 1 stage. (Doc. 33 at 4). Moreover, Defendants submission of the body camera footage 2 exhibits aims to create a defense to and refute Plaintiff’s allegations without giving Plaintiff 3 a sufficient opportunity to respond to the Defendants’ proposed version of facts. Therefore, 4 the Court declines to incorporate by reference Exhibits 1–3. 5 ii. Exhibit 4: Medical Examiner’s Autopsy Report 6 Exhibit 4 is the Medical Examiner’s Autopsy Report. Plaintiff’s SAC does not 7 reference or necessarily rely upon the report, so incorporation by reference is inappropriate. 8 Although a public record, Plaintiff appears to contest the validity or interpretation of the 9 facts included in the Autopsy Report in her Response. (Doc. 33 at 10). Thus, the Court 10 finds it inappropriate to consider the report at the Motion to Dismiss stage. 11 iii. Exhibit 5: Notice of Claim 12 Defendants’ proposed Exhibit 5 is the Notice of Claim Plaintiff submitted to the 13 City of Chandler Board of Supervisors in accordance with administrative requirements 14 under Arizona law. Plaintiff references the document in the SAC, and the document is a 15 public record. (Doc. 33 at 4). As a plaintiff must file a Notice of Claim before bringing suit 16 against public employees under A.R.S. § 12-821.01(A), Plaintiff’s Notice is integral to her 17 state law claims. Moreover, Plaintiff created the document, and thus, there is no dispute of 18 its authenticity. The facts of the Notice that Defendants seek to submit—namely, which 19 parties Plaintiff identified and addressed in the Notice—are indisputable. Courts in this 20 District have found it appropriate to consider Notices of Claim at the motion to dismiss 21 stage. See Stuart v. City of Scottsdale, No. CV-17-01848-PHX-DJH, 2018 WL 11590045 , 22 at *11 (D. Ariz. Sept. 27, 2018) (considering Notice of Claim at motion to dismiss stage). 23 The Court finds it appropriate to take judicial notice of Exhibit 5. 24 iv. Exhibits 6 and 7: Public Filings of Decedent’s Estate 25 Exhibit 6 is Plaintiff’s Application for Informal Appointment of Personal 26 Representative of Decedent. (Doc. 29-2 at 16). Exhibit 7 is the Probate Registrar’s Denial 27 of Plaintiff’s Application due to application deficiencies. (Id. at 21). Defendants seek to 28 submit these exhibits as proof that Plaintiff is not the personal representative of Decedent’s 1 estate. (Doc. 29 at 7). Plaintiff’s SAC does not mention or rely upon either document, so 2 incorporation by reference is inappropriate. However, Plaintiff’s SAC fails to allege that 3 she is the personal representative of Decedent’s estate as necessary to have standing to 4 bring claims on his behalf. Defendants acknowledge that Plaintiff has since obtained 5 standing as the personal representative of Decedent’s estate but argue that Plaintiff still 6 must take leave to amend to properly assert standing in her claim. (Doc. 34 at 3). As 7 Exhibits 6 and 7 pertain to the issue of Plaintiff’s status as Decedent’s estate 8 representative—an issue that has been resolved since the filing of the present Motion—the 9 Court declines to consider whether these exhibits are appropriate for consideration at the 10 Motion to Dismiss stage. 11 B. Count One – Excessive Force in Violation of the Fourth Amendment 12 Plaintiff alleges that Defendant Officers and Does 1–50’s excessive force violated 13 Decedent’s Fourth Amendment rights under 42 U.S.C. § 1983 . (Doc. 27 at 7). Defendants 14 propose two arguments for the dismissal of the excessive force claim: (1) Plaintiff is not 15 the personal representative of Decedent and therefore cannot bring a Fourth Amendment 16 claim on behalf of Decedent; and (2) alternatively, that Defendants Figley, Deanda, 17 Prendergast, and Wagner (the “non-shooting officers”) cannot be liable for Excessive 18 Force in violation of the Decedent’s Fourth Amendment rights. (Doc. 29 at 7–8). 19 With respect to the first argument, Plaintiff failed to plea in the SAC that she was 20 the personal representative of Decedent’s estate, as required to bring a Fourth Amendment 21 claim on behalf of a decedent. See Longoria v. Pinal Cnty., 873 F.3d 699, 711 (9th Cir. 22 2017) (“Only [decedent’s] estate may bring a § 1983 for the violation of his Fourth 23 Amendment rights; his family members have no standing to sue on their own behalves.”). 24 Defendants acknowledge that since the filing of the Motion, Plaintiff has obtained standing 25 through appointment as the personal representative of Decedent’s estate. (Doc. 34 at 3). As 26 such, the Court will grant Defendants’ Motion with respect to the Fourth Amendment claim 27 against all Defendants and grant Plaintiff leave to amend to properly assert standing against 28 the Defendants. 1 Because Plaintiff’s standing deficiency appears to be easily remedied with leave to 2 amend, the Court finds it appropriate to address Defendants’ arguments that Plaintiff’s 3 claims against the non-shooting officers fail to meet the requirements of Rule 8. Regarding 4 the non-shooting officers, to allege a claim that a police officer’s excessive force violated 5 an individual’s Fourth Amendment rights, a plaintiff must show that the officer used force 6 that was not objectively reasonable under the circumstances. See Graham v. Connor, 490 7 U.S. 386, 397 (1989). Defendants argue that Plaintiff has not alleged a plausible excessive 8 force claim against Defendants Figley, Deanda, and Prendergast because they did not use 9 any force at all or against Defendant Wagner, because Defendant Wagner’s use of the taser 10 against Decedent did not cause his death. (Doc. 29 at 7–8). Plaintiff argues that the non11 shooting officers should be held liable as integral participants and for failing to intervene, 12 and in the case of Defendant Wagner, as an integral participant. (Doc. 33 at 5–6). 13 i. Integral Participant 14 Under the integral participant theory, officers may be liable under § 1983 even if 15 they did not directly engage in unconstitutional conduct if they are fundamentally involved 16 in the conduct that allegedly caused the violation. Monteilh v. Cnty. of Los Angeles, 820 F. 17 Supp. 2d 1081, 1089 (C.D. Cal. 2011) (citing Jones v. Williams, 297 F.3d 930, 936 (9th 18 Cir. 2002)). “Officers are fundamentally involved in the alleged violation when they 19 provide some affirmative physical support . . . and when they are aware of the plan to 20 commit the alleged violation or have reason to know of such a plan, but do not object.” 21 Monteilh, 820 F. Supp. 2d at 1089. Alternatively, an officer may be an integral participant 22 if he sets in motion a sequence of events that gives rise to a constitutional violation when 23 the violation is a foreseeable consequence of his decision. Nicholson v. City of Los Angeles, [24] 935 F.3d 685 , 691–92 (9th Cir. 2019). All told, “simply being present at the scene does not 25 demonstrate that an officer has acted as part of a common plan.” Peck v. Montoya, 51 F.4th 26 877, 889 (9th Cir. 2022). Rather, an officer must participate in the planning or the execution 27 of the unconstitutional conduct to constitute an integral participant. Id. 28 In the present case, Plaintiff’s SAC does not allege facts that plausibly support a 1 claim that the non-shooting officers were integral participants in the alleged Fourth 2 Amendment violation. The SAC does not propose that the non-shooting officers were 3 aware of a plan to allegedly commit excessive force or set in motion the series of events 4 that led to Decedent’s death. See Peck, 51 F.4th at 891–92 (finding no integral participation 5 when the shooting was unplanned, and officers had no reason to know that providing armed 6 backup would result in an unconstitutional shooting). Even in the case of Defendant 7 Wagner, whose use of the taser could potentially constitute affirmative physical support, 8 the SAC fails to allege that Defendant Wagner knew or should have known of some 9 common plan to engage in unconstitutional conduct. Thus, the Court finds that Plaintiff 10 does not allege a plausible claim that the non-shooting officers are liable as integral 11 participants in the alleged Fourth Amendment violation. 12 ii. Failure to Intervene 13 Under the failure to intervene theory, “police officers have a duty to intercede when 14 their fellow officers violate the constitutional rights of a suspect or other citizen.” 15 Cunningham v. Gates, 229 F.3d 1271, 1289 (9th Cir. 2000) (quotation omitted). “If an 16 officer fails to intervene when fellow officers use excessive force, despite not acting to 17 apply the force, he would be responsible for violating the Fourth Amendment.” Garlick v. 18 Cnty. of Kern, 167 F. Supp. 3d 1117, 1161 (E.D. Cal. 2016). However, “officers can be 19 held liable for failing to intercede only if they had an opportunity to intercede.” 20 Cunningham, 229 F.3d at 1289 . To that end, “such a duty is not triggered by an officer’s 21 mere presence at the scene of the constitutional violation.” Viehmeyer v. City of Santa Ana, [22] 67 F. App’x 470, 473 (9th Cir. 2003). 23 Here, Plaintiff alleges that the non-shooting officers surrounded the second 24 residence Decedent entered. (Doc. 27 at 5). Plaintiff’s alleged facts show that Decedent 25 specifically encountered Defendants Buchanan and Wagner, who shot and tased Decedent, 26 respectively, before he died. (Id.). Plaintiff’s facts do not allege that Defendants Deanda, 27 Figley, or Prendergast were even in the backyard or that the non-shooting officers, 28 including Defendant Wagner, were near Defendant Buchanan such that they could have 1 physically intervened. See Ting v. United States, 927 F.2d 1504, 1512 (9th Cir. 1991) 2 (“[T]he agents were positioned around the room away from [the shooting officer and 3 victim] and were thus physically incapable of preventing the incidents surrounding the 4 shooting, all of which transpired in a matter of seconds. Therefore, it cannot be said that 5 the agents’ failure to intervene was the cause in fact of [the victim’s] injuries.”). Moreover, 6 the SAC does not provide facts that any of the non-shooting officers had the opportunity 7 to know of and intervene with Defendant Buchanan’s decision to shoot Decedent. See id. 8 (finding no failure to intervene when there was no evidence the non-shooting agents knew 9 the shooting officer would hurt or shoot the plaintiff). Thus, Plaintiff has not plausibly 10 alleged that the non-shooting officers failed to intervene. 11 In sum, Plaintiff has not alleged facts that, taken as true, support a claim that the 12 non-shooting officers violated Decedent’s Fourth Amendment rights as integral 13 participants or by failing to intervene. The Court will grant Defendants’ Motion to Dismiss 14 Count One with respect to Defendants Deana, Figley, Prendergast, and Wagner without 15 prejudice and grant Plaintiff leave to amend. 16 C. Count Two – Fourteenth Amendment Violation of Familial Relationship 17 Defendants argue that Plaintiff’s claim that the Officers violated her Fourteenth 18 Amendment interest in the companionship of her child must be dismissed, as the non19 shooting officers did not deprive Plaintiff of her familial relationship and Defendant 20 Buchanan acted with a legitimate law enforcement purpose. (Doc. 29 at 9). Plaintiff 21 counters that the non-shooting officers acted with deliberate indifference in failing to 22 intervene and that Defendant Buchanan lacked a legitimate law enforcement purpose in 23 shooting Decedent. (Doc. 33 at 6–7). 24 The Ninth Circuit recognizes that parents have a Fourteenth Amendment interest in 25 the companionship of their children. Curnow v. Ridgecrest Police, 952 F.2d 321 , 325 (9th 26 Cir. 1991). In order for official conduct to violate a parent’s due process rights, the conduct 27 must “shock the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). 28 Courts consider the facts of the case in order to determine if an officer’s conduct meets the 1 “shocks the conscience” standard. Id. In urgent, emergency situations that necessitate fast 2 action and involve competing public safety obligations, a plaintiff must show that an 3 official acted with a “purpose to harm” for reasons other than legitimate law enforcement 4 objectives to meet the “shocks the conscience” standard. Id. at 1137–39; see also Moreland 5 v. Las Vegas Metro. Police Dep’t, 159 F.3d 365 , 372 (9th Cir. 1998), as amended (Nov. 6 24, 1998) (finding purpose to harm standard appropriate when police responded to a 7 gunfight in a large crowd because it was an extreme emergency); Peck, 51 F.4th at 893 8 (“We apply the purpose-to-harm standard when officials were required to make ‘repeated 9 split-second decisions’ about how best to respond to a risk, such as during a high-speed car 10 chase or when confronting a threatening, armed suspect.”). Alternatively, an official’s 11 “deliberate indifference” may violate a parent’s Fourteenth Amendment rights under 12 certain circumstances. Porter, 546 F.3d at 1137 . For instance, deliberate indifference may 13 rise to the level of shocking the conscience in situations where officers had extended 14 opportunities for actual deliberation and still engaged in unconstitutional conduct. Id. at 15 1137–39. This standard is appropriate “when officials had ‘ample time to correct their 16 obviously [wrongful conduct],’ such as in Eighth Amendment prisoner-treatment cases or 17 in wrongful-detention cases.” Peck, 51 F.4th at 893 (citing Porter, 546 F.3d at 1139 ). 18 In the present case, the Court finds that the purpose to harm, rather than deliberate 19 indifference, standard is appropriate. Plaintiff’s SAC alleges facts that indicate the incident 20 was an urgent, dangerous emergency: several calls were made to 911 regarding Decedent 21 allegedly stealing from a nearby Ace Hardware store, fleeing and jumping various fences 22 in a nearby residential area, and entering two homes, and Defendant confronted the Officers 23 with a long blade knife in hand. (Doc. 27 at 5). The alleged facts show that Decedent was 24 armed and non-responsive to the Officers’ commands for Decedent to drop the knife before 25 engaging in a forward motion. (Id.). While the SAC does not specify the length of the 26 incident, the facts demonstrate a situation in which the Officers were required to make 27 multiple fast decisions on how to best respond to risk posed by an armed, potentially 28 dangerous suspect. See Peck, 51 F.4th at 894 (“Once the deputies identified the gun, they 1 were required to develop a concrete tactical response quickly, making repeated snap 2 judgments and assessing [defendant’s] every move. In such a fast-paced environment, 3 deliberate action within the meaning of our cases was not possible.”). The SAC does not 4 allege that the Officers had ample time to contemplate their conduct, and this case is not 5 akin to the kind of prison custodial situations that have utilized the deliberate indifference 6 standard. See generally Cnty. of Sacramento v. Lewis, 523 U.S. 833 , 851–52 (1998) (“But 7 just as the description of the custodial prison situation shows how deliberate indifference 8 can rise to a constitutionally shocking level, so too does it suggest why indifference may 9 well not be enough for liability in the different circumstances of [a high-speed auto 10 chase].”). Because a deliberate indifference review is not appropriate under the 11 circumstances of this case, Plaintiff’s argument that the non-shooting officers violated 12 Plaintiff’s Fourteenth Amendment rights by acting with deliberate indifference in failing 13 to intervene fails to state a claim upon which relief may be granted. Therefore, Defendants’ 14 Motion to Dismiss Count Two with respect to Defendants Deanda, Figley, Prendergast, 15 and Wagner is granted. Because no new facts could remedy this claim against the non16 shooting officers, the Court finds that leave to amend Count Two against Defendants 17 Deanda, Figley, Prendergast, and Wagner is inappropriate. 18 Under the purpose to harm standard, a plaintiff must show that a defendant acted 19 with a purpose to harm that was unrelated to legitimate law enforcement objectives. Porter, [20] 546 F.3d at 1137 . Conduct such as purely reactive decision-making or responding to an 21 emergency weighs against a purpose to harm finding. See id. at 1140 . Instead, a plaintiff 22 must show that an officer’s intention was “to cause harm unrelated to the legitimate object 23 of arrest,” “induce . . . lawlessness, or to terrorize, cause harm, or kill,” or to “teach [the 24 suspect] a lesson” or “get even.” Id. (citations omitted). Absent evidence of such intentions 25 or evidence that an “officer’s reaction was driven by anything other than his ‘instinct … to 26 do his job as a law enforcement officer,’” an officer will escape liability under the purpose 27 to harm standard, even if the officer misperceived danger or acted irresponsibly. Bingue v. 28 Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (citing Lewis, 523 U.S. at 855 ). 1 Plaintiff’s SAC alleges that Defendant Buchanan shot Decedent “for no legitimate 2 law enforcement reason.” (Doc. 27 at 9). The SAC continues to allege that Defendant 3 Buchanan “acted maliciously with a purpose to harm Decedent Ring unrelated to legitimate 4 law enforcement purposes because Ring was collapsing from his own self-inflicted knife 5 wounds.” (Id.). The Court finds these allegations are conclusory and do not include facts 6 sufficient to support a finding that Defendant Buchanan acted with a purpose to harm that 7 was unrelated to his attempt and instinct to do his job. See Coleman v. Las Vegas Metro. 8 Police Dep’t, No. 21-16269, 2022 WL 3594272 , at *1 (9th Cir. 2022) (“Plaintiffs’ failure 9 to assert non-conclusory allegations regarding Officer Peacock’s intent to harm is fatal to 10 their 42 U.S.C. § 1983 substantive due process claim.”). In sum, Plaintiff’s SAC does not 11 plausibly allege that Plaintiff is entitled to relief on her Fourteenth Amendment claim 12 against Officer Buchanan, and thus, dismissal of Count Two against Officer Buchanan is 13 warranted. However, because new facts could remedy Plaintiff’s conclusory allegations, 14 the Court finds that leave to amend is appropriate. 15 D. Counts Three–Six – State Law Claims 16 Plaintiff brings various state law claims against the Defendants. Plaintiff brings two 17 claims—Negligent Wrongful Death and Intentional Wrongful Death—against all 18 Defendants under A.R.S. § 12-611. (Doc. 27 at 9–10). Additionally, Plaintiff alleges all 19 Defendants are liable for “Negligence.” (Id. at 11–12). Lastly, Plaintiff alleges all 20 Defendants are liable for Assault and Battery in violation of A.R.S. §§ 13-20 and 1321 203(a)(1). With respect to Defendant City of Chandler (“Defendant Chandler”), Plaintiff 22 alleges it is vicariously liable for the Officers’ actions under A.R.S. § 12-821.01(A). 23 Defendants argue that Plaintiff’s state law claims against the Officers fail because 24 she did not timely serve her Notice of Claim on the individual officers as required by A.R.S. 25 § 12-821.01(A). (Doc. 29 at 11). If the alleged deficiencies in Plaintiff’s Notice of Claim 26 do not doom Plaintiff’s state law claims, Defendants argue that the claims fail on the merits 27 or are otherwise not viable causes of action. (Id. at 12). Lastly, Defendants argue that 28 Defendant Chandler cannot be held vicariously liable for the Officers’ actions because 1 A.R.S. § 12-820.05(B) immunizes public entities from vicarious liability unless the entity 2 knew of its employee’s propensity for the criminal action. (Id. at 15). 3 i. Notice of Claim 4 In Arizona, a state law claim against a public employee is barred unless a notice of 5 claim is filed within 180 days of the claim’s accrual. A.R.S. § 12-821.01(A). “A claimant 6 who asserts that a public employee’s conduct giving rise to a claim for damages was 7 committed within the course and scope of employment must give notice of the claim to 8 both the employee individually and to his employer.” Crick v. City of Globe, 606 F. Supp. 9 3d 912, 916 (D. Ariz. 2022) (citations omitted). “[A] party seeking to sue a government 10 employee must personally serve the employee with the [Notice of Claim]—service upon 11 the City Clerk, or the receptionist at the office where the government employee happens to 12 work, is insufficient.” Andrich v. Kostas, No. CV-19-02212-PHX-DWL, 2020 WL 13 377093, at *6 (D. Ariz. Jan. 23, 2020). “Actual notice and substantial compliance do not 14 excuse failure to comply with the statutory requirements of A.R.S. § 12-821.01(A).” 15 Falcon v. Maricopa Cnty., 144 P.3d 1254, 1256 (Ariz. Ct. App. 2006). 16 Plaintiff’s SAC provides that “Plaintiff submitted a claim to the Board of 17 Supervisors for the City of Chandler.” (Doc. 27 at 4). Defendants argue in their Motion to 18 Dismiss that Plaintiff’s failure to serve any of the individual Defendants within 180 days 19 of the incident dooms Plaintiff’s state law claims. (Doc. 29 at 11). Plaintiff counters that at 20 the time Plaintiff timely served her claim notice on the City of Chandler, Plaintiff did not 21 have all the names of the officers involved and can substitute Defendant “Does” with 22 individual officer names to sustain the state law claims. (Doc. 33 at 8). As Plaintiff’s Notice 23 of Claim only addressed the “City of Chandler,” rather than any unknown officers or 24 Defendant “Does,” it is unclear how Plaintiff intended to substitute identified officers in 25 the Notice of Claim. (Doc. 29-2 at 13). In any event, courts have found that a failure to 26 individually serve public employees does not comply with A.R.S. § 12-821.01(A), even if 27 the plaintiff discussed the employees’ conduct in a Notice identifying the city as an 28 employee or failed to serve individuals because their identities were undisclosed. See 1 Adame v. City of Surprise, No. CV-17-03200-PHX-GMS, 2018 WL 3209388 , at *5 (D. 2 Ariz. June 29, 2018) (dismissing claim against officer when the notice was not addressed 3 to or served upon officer nor identified him as a party, despite reciting the officer’s alleged 4 misconduct); Bustamante v. Gonzalez, No. CV07-0940PHX-DGC JRI, 2010 WL 396361 , 5 at *10 (D. Ariz. Jan. 29, 2010) (dismissing claims because plaintiff failed to individually 6 serve officers whose identities were undisclosed at time of filing); Baker v. City of Tempe, 7 No. CV 07-1553-PHX-MHM, 2008 WL 2277882 , at *3 (D. Ariz. May 30, 2008) 8 (dismissing claims against officers when notice failed to name them because “the Notice 9 would not have enabled them to know that they were potential litigants, nor the nature of 10 the claims against them as individuals”). 11 Here, Plaintiff failed to properly serve or give timely notice—indeed, Plaintiff gave 12 no notice at all—to the individual officers prior to filing this suit. As such, “Plaintiff’s 13 claims against all individual officers are barred based on a straightforward failure to 14 comply with the notice of claim statute.” Boss v. Unknown Parties, No. CV-14-0234415 PHX-ROS, 2015 WL 12592106 , at *2 (D. Ariz. Oct. 19, 2015). All told, Plaintiff failed to 16 state a claim upon which relief may be granted for Counts Three through Six with respect 17 to Defendant Officers and Defendant Does, and the Court finds that leave to amend would 18 be futile. 19 i. Defendant Chandler’s Vicarious Liability 20 Under Arizona law, municipal responsibility arises from vicarious liability. Crick v. 21 City of Globe, 606 F. Supp. 3d 912 , 918 (D. Ariz. 2022). While an employee’s exoneration 22 would typically preclude an employer’s vicarious liability, “dismissing a claim against an 23 employee for reasons that did not exonerate the employee from wrongdoing [does not 24 require] the court to also dismiss a claim against the employer under the doctrine of 25 respondeat superior.” Laurence v. Salt River Project Agric. Improvement & Power Dist., [26] 528 P.3d 139 , 145 (2023). Dismissal of a claim with prejudice based on a failure to comply 27 with A.R.S. § 12-821.01(A) does not exonerate an employee defendant from the claim and 28 does not necessarily bar a vicarious liability claim against the employee’s employer. See 1 generally id. at 141. Moreover, a plaintiff is not required to serve a notice of claim on an 2 employee to pursue a claim against its employer. Id. at 148; Moore v. Arizona, No. CV 223 01938-PHX-JAT (JFM), 2024 WL 2699939 , at *3 (D. Ariz. May 24, 2024). Therefore, 4 Plaintiff’s failure to serve the individual Officers the Notice of Claim does not prevent 5 Plaintiff from pursuing or require dismissal of the claims against Defendant Chandler. The 6 Court will analyze whether Plaintiff’s state law claims against Defendant Chandler are 7 subject to dismissal on the merits or other procedural grounds below. 8 a. Negligent Wrongful Death 9 A.R.S. § 12-611 provides a cause of action “[w]hen death of a person is caused by 10 wrongful act, neglect or default.” Plaintiff brings two claims—Negligent Wrongful Death 11 and Intentional Wrongful Death—against all Defendants under A.R.S. § 12-611. (Doc. 27 12 at 9–10). Plaintiff alleges that the Officers breached a duty of care owed to Plaintiff and 13 Decedent through their negligent and intentional acts and omissions, and that Defendant 14 Chandler is vicariously liable for these wrongful acts and omissions. (Id. at 10–11). 15 Defendants argue that these claims must be dismissed because under Arizona state law, 16 claims for negligence arising out of the intentional use of force are barred. (Doc. 29 at 12). 17 Defendants correctly assert that the Arizona Supreme Court has held that negligence 18 claims cannot be based solely on an officer’s intentional use of force. See Ryan v. Napier, [19] 425 P.3d 230, 233 (2018). Here, Plaintiff alleges no negligent conduct by the officers that 20 harmed Decedent independent of the use of force. See Harris v. City of Phoenix, No. 2221 16307, 2023 WL 6635077 , at *1 (9th Cir. 2023). It is undisputed that Officer Buchanan 22 intentionally shot Decedent, leading to his death. (Doc. 27 at 6). 23 In her Response, Plaintiff argues that the negligence claim “is not just based on 24 Buchanan’s intentional conduct. The negligence claim is based on the officers’ tactical 25 errors . . . [that] necessitated shooting Ring.” (Doc. 33 at 9). It is unclear whether this 26 argument refers to Count Three (Negligent Wrongful Death), Count Five (Negligence), or 27 both. To the extent that Plaintiff argues that Defendant Officers’ tactical errors support the 28 Negligent Wrongful Death claim, this Court is unconvinced. The Arizona Supreme Court 1 has refused to recognize negligence liability resulting “from a law enforcement officer’s 2 ‘evaluation’ of whether to intentionally use force against another person.” Ryan, 425 P.3d 3 at 236. “A negligence claim requires ‘an act’ or a ‘failure to act.’” Id. “An actor’s internal 4 evaluation about whether to use force and the decision to do so are not ‘acts’ and therefore 5 cannot, by themselves, constitute negligence.” Id. at 237; see also Weber v. City of 6 Kingman, No. 1 CA-CV 21-0063, 2022 WL 1468246 , at *2–3 (Ariz. Ct. App. 2022) 7 (finding that negligence wrongful death claims based on pre-shooting tactical decisions 8 and failure to engage in de-escalation techniques are barred). Thus, Defendant Officers’ 9 evaluations and tactical decisions on how to handle the incident leading up to the shooting 10 cannot alone constitute negligence. 11 Because no cognizable legal theory supports Plaintiff’s Negligent Wrongful Death 12 claim, Defendant Chandler cannot be held vicariously liable. See Laurence, 528 P.3d at 13 150 (“Dismissing a tort claim against an employee because the claim lacks merit requires 14 the court to also dismiss a claim against an employer under the doctrine of respondeat 15 superior.”). As no additional facts could support a plausible claim, the Court finds leave to 16 amend would be futile. Count Three is dismissed with prejudice against Defendant 17 Chandler. 18 b. Intentional Wrongful Death 19 Plaintiff’s second claim under A.R.S. § 12-611, Intentional Wrongful Death, closely 20 mirrors her Negligent Wrongful Death Claim. Plaintiff alleges that Defendants breached 21 various duties of care owed to Plaintiff through their intentional use of excessive force, and 22 that Defendant Chandler is vicariously liable for the Defendant Officers’ actions. (Doc. 27 23 at 11). Defendants request the Court interpret Count Four (Intentional Wrongful Death) as 24 barred under the same legal theory that dooms Plaintiff’s Negligent Wrongful Death claim, 25 because despite its “intentional” label, it is based on negligence elements such as duty and 26 breach of care. (Doc. 29 at 13). Defendants are correct that intentional tort claims do not 27 require proof of duty, breach, or a causal connection between breach and the alleged injury, 28 and instead require a showing of tortious intent. Ryan, 425 P.3d at 235 . 1 “A wrongful death claim is not itself a theory of liability.” Harris v. Phoenix, No. 2 CV-20-00078-PHX-DLR, 2021 WL 4942662 , at *2 (D. Ariz. Oct. 22, 2021) (cleaned up). 3 “[I]n cases advancing claims based ‘solely on an officer’s intentional use of physical force,’ 4 a plaintiff may only advance a theory of intentional use of force.” Id. (citations omitted). 5 Courts have found that in Arizona, an allegation that a police officer unjustifiably shot a 6 decedent is a theory of intentional force akin to aggravated assault, a criminal felony. Id.; 7 see also Betancourt v. City of Phoenix, No. 1 CA-CV 16-0361, 2017 WL 5586533 , at *4 8 (Ariz. Ct. App. 2017). In order for a public entity to be liable for an employee’s intentional 9 use of force, it must actually know of the employee’s propensity to commit that particular 10 act. Harris, 2021 WL 4942662 , at *1; see also A.R.S. § 12-820.05(B) (“A public entity is 11 not liable for losses that arise out of and are directly attributable to an act or omission 12 determined by a court to be a criminal felony by a public employee unless the public entity 13 knew of the public employee’s propensity for that action.”). 14 Here, Plaintiff does not allege any facts in the SAC that Defendant Chandler had 15 any actual knowledge that Officer Buchanan had a propensity for aggravated assault or to 16 otherwise wrongfully shoot or engage in excessive force. In her Response to the present 17 Motion, Plaintiff argues that “[i]t stands to reason that City might have prior knowledge of 18 Buchanan’s or other officer’s propensities to shoot.” (Doc. 33 at 10). This statement is too 19 conclusory to warrant a favorable inference that Defendant Chandler had actual knowledge 20 and was on notice that Officer Buchanan specifically had such a propensity. The Court will 21 dismiss Count Four against Defendant Chandler and grant Plaintiff leave to amend. 22 c. Negligence 23 Count Five (Negligence) argues that the Officers breached a duty to use reasonable 24 judgment while interacting with Decedent and refusing to treat Decedent’s gunshot 25 wounds, and further, that Defendant Chandler is vicariously liable for the Officers’ actions. 26 (Doc. 27 at 12–13). Defendants interpret this common law claim to be an attempted 27 survival action under A.R.S. § 14-3110, and in doing so, argue that Count Five should fail 28 because Plaintiff did not allege these claims as the personal representative of the estate and 1 because Plaintiff does not seek recoverable damages. (Doc. 29 at 12). 2 Arizona’s survival statute, A.R.S. § 14-3110, allows a decedent’s estate to bring 3 claims on behalf of the decedent. Manion v. Ameri-Can Freight Sys. Inc., 391 F. Supp. 3d 4 888, 892 (D. Ariz. 2019). Only the personal representative of a decedent’s estate can use 5 the survival statute as a vehicle to bring claims the decedent could have themselves brought 6 if not for their death. Bd. of Tr. of Sw. Carpenters Health & Welfare Tr. v. Jackson, No. 7 CV-22-01781-PHX-SMM, 2023 WL 4488978 , at *3 (D. Ariz. July 12, 2023). 8 It is unclear whether Plaintiff intended Count Five to be a survival action; Plaintiff’s 9 SAC shows that she brings Count Five “as successor in interest to decedent,” but there is 10 no mention of A.R.S. § 14-3110—the requisite foundation for bringing a claim on behalf 11 of Decedent—in her claim. (Doc. 27 at 12). Plaintiff’s only mention of the statute can be 12 found in the damages section of the SAC, where she states that she is “entitled to recover 13 wrongful death damages” under the statute. (Id. at 6). In her Response, Plaintiff argues that 14 she can bring a survival action under A.R.S. § 14-3110 because she intends to substitute as 15 the proper estate representative. (Doc. 33 at 8). However, Plaintiff fails to explain within 16 the four corners of the SAC or the responsive briefing to this Motion whether she intends 17 to bring her claim for “Negligence” pursuant to A.R.S. § 14-3110 or how she otherwise 18 has standing to bring a claim for “Negligence.” In the event Plaintiff intended to bring the 19 Negligence claim as a survival action on behalf of Decedent, the Court does not find 20 Plaintiff’s argument persuasive. As noted above, Plaintiff has yet to plead that she is the 21 proper estate representative. Thus, Plaintiff lacks standing to bring a survival action for any 22 claims on behalf of Decedent, and her claims must be dismissed. 23 Even if Plaintiff amends her Complaint to properly assert standing to bring a 24 survival action, Defendants argue that there can be no survival action because there are no 25 recoverable damages. (Doc. 29 at 12). It is well-settled that in Arizona, a survival action 26 only provides for recovery of damages sustained by the deceased party from the time of 27 accident until his death. Barragan v. Superior Ct. of Pima Cnty., 470 P.2d 722, 724 (Ariz. 28 Ct. App. 1970). Plaintiff argues that survival actions allow for the recovery of damages 1 such as lost wages, funeral expenses, burial expenses, and punitive damages. (Doc. 33 at 2 8). 3 The Court disagrees. The Ninth Circuit declined to find that the Arizona survival 4 statute provides for recovery of a decedent’s future loss of earnings, noting: 5 Although the Arizona Supreme Court has not addressed whether Arizona’s survival statute allows recovery of future 6 economic damages, several Arizona Court of Appeals cases have held that the survival statute only allows for damages that 7 accrued before death, and the Arizona Supreme Court has recently declined to review two of those decisions. [8] 9 See Matus v. Kustom US, Inc., No. 23-16134, 2024 WL 3688728 , at *1 (9th Cir. 2024). 10 Thus, Plaintiff cannot recover any of Decedent’s future lost wages. Furthermore, funeral 11 and burial expenses are not accrued until after an individual’s death. Such expenses are 12 therefore categorically excluded from recovery under the survival statute. Lastly, A.R.S. § 13 12-280.04 provides that “[n]either a public entity nor a public employee acting within the 14 scope of his employment is liable for punitive or exemplary damages.” Therefore, Plaintiff 15 cannot recover punitive damages under the survival statute. 16 The Court finds that even if Plaintiff amends her Complaint to properly assert 17 standing under Arizona’s survival statute and provide additional facts, she will still be 18 unable to state a claim upon which relief may be granted. Count Five will be dismissed 19 with prejudice. 20 d. Assault/Battery in Violation of A.R.S. §§ 13-20 and 1321 1203(A)(1) 22 Plaintiff’s Count Six alleges that Defendant Officers violated A.R.S. §§ 13-20 and 23 13-1203(A)(1) by placing Decedent “in immediate fear of death and severe bodily harm 24 by battering and shooting him without any just provocation or cause” and that Defendant 25 Chandler is vicariously liable. (Doc. 27 at 13). Defendants argue that Defendant Chandler 26 is immune from liability on the assault and battery claim under A.R.S. § 12-820.05(B). 27 (Doc. 29 at 14–15). Defendants argue that the claims are premised on losses resulting from 28 Defendant Buchanan’s shooting of Decedent, which constitutes at minimum felony 1 aggravated assaulted when viewing the allegations in the light most favorable to the non2 moving party. (Id. at 15). As Plaintiff failed to allege that Defendant Chandler had actual 3 knowledge of Defendant Buchanan’s propensity for felony aggravated assault, Defendants 4 argue that Plaintiff’s claim is doomed. (Id. at 16). Plaintiff counters, as noted above, that 5 Defendant Chandler “might have prior knowledge of Buchanan’s or other officer’s 6 propensities to shoot” and thus Defendant Chandler should still be held vicariously liable 7 under A.R.S. § 12-820.05(B). (Doc. 33 at 10). 8 This claim fails for several reasons. Similarly to Plaintiff’s Negligence claim, it is 9 unclear whether Plaintiff intends to bring this claim as a survival action pursuant to A.R.S. 10 § 14-3110 or—as the parties seem to argue in this Motion’s briefing—as a theory of 11 intentional use of force to advance an Intentional Wrongful Death claim in her own 12 capacity. To the extent that Plaintiff seeks to bring this claim as a survival action, Plaintiff 13 fails to allege recoverable damages—as discussed above in the Court’s dismissal of Count 14 Five—which warrants dismissal with prejudice. 15 To the extent that Plaintiff seeks to bring this claim as a theory of intentional force 16 to advance a wrongful death claim, Plaintiff fails to sufficiently state a claim upon which 17 relief may be granted. First, A.R.S. § 13-20 does not exist. Second, while A.R.S. § 13-1203 18 codifies assault as a criminal misdemeanor, Plaintiff does not contest Defendants’ assertion 19 that the Court should interpret Count Six as a claim for felony aggravated assault 20 underlying an intentional wrongful death claim subject to analysis under A.R.S. § 1221 820.05(B). (Doc. 29 at 14–15; Doc. 33 at 10). However, the Court declines to do so, 22 because Plaintiff’s SAC does not seek to bring this “Assault/Battery” claim as a wrongful 23 death claim, Plaintiff already brings an Intentional Wrongful Death claim based on the 24 Defendants’ same conduct in Count Four, and the Court already applied an A.R.S. § 1225 820.05(B) analysis to Plaintiff’s Count Four. 26 If Plaintiff intended to bring Count Six under a vehicle other than a survival or 27 wrongful death action, the Court cannot determine that from the SAC. “Judges are not like 28 pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927 F.2d 955, 956 (7th 1 Cir. 1991). “Nor are they archaeologists searching for treasure.” Jeralds v. Astrue, 754 2 F.Supp.2d 984 , 985 n.1 (N.D. Ill. 2010). Defendant’s Motion to Dismiss Count Six against 3 Defendant Chandler is granted. Because the Court cannot determine what theory of 4 standing Plaintiff brings this claim under, the Court cannot determine whether amendment 5 will be futile. The Court will therefore give Plaintiff the opportunity to amend the SAC. 6 E. Defendants Does 1–50 7 Lastly, Defendants argue that Plaintiff’s naming of “John and Jane Doe” Defendants 8 is inconsistent with the Federal Rules of Civil Procedure and thus all “Doe” Defendants 9 should be dismissed. (Doc. 29 at 16). Fictitious defendants are not favored in federal court 10 as a general rule. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). “[T]he plaintiff 11 should be given an opportunity through discovery to identify the unknown defendants, 12 unless it is clear that discovery would not uncover the identities, or that the complaint 13 would be dismissed on other grounds.” Id. 14 Here, Plaintiff’s SAC alleges that she is ignorant of the true names and capacities 15 of Defendant Does. (Doc. 27 at 4). Plaintiff’s Response to the present Motion indicates that 16 while Plaintiff “did not know the true or exact names or roles of all the defendants. 17 Plaintiffs now have more information about the true defendants.” (Doc. 33 at 11). It is 18 unclear whether Plaintiff intends to concede that all Defendant Does have been identified 19 since the filing of her Complaint or to argue that discovery is needed to uncover the 20 identities of additional unidentified parties. As such, the Court will grant Plaintiff leave to 21 amend Counts One and Two to either substitute parties or withdraw the claims against 22 Defendant Does. As noted above, Plaintiff’s state law claims fail against Defendant Does 23 because Plaintiff failed to identify or serve her Notice of Claim on those Defendants. Thus, 24 the Court has already deemed it appropriate to dismiss Counts Three through Six against 25 Defendant Does with prejudice. 26 IV. CONCLUSION 27 All told, “whether a complaint states a plausible claim for relief will . . . be a context28 specific task that requires the reviewing court to draw on its judicial experience and 1 common sense.” Iqbal, 556 U.S. at 679 . A district court should normally grant leave to 2 amend unless it determines that the pleading could not possibly be cured by allegations of 3 other facts. Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242 , 247 (9th Cir. 4 1990). 5 While Plaintiff only needs to allege enough facts to “plausibly give rise to an 6 entitlement to relief,” that has not occurred here. Iqbal, 556 U.S. at 679 . Therefore, the 7 Amended Complaint fails to satisfy the pleading standards set forth by Rule 8 and 12(b)(6), 8 and its dismissal is both warranted and necessary. Some of Plaintiff’s claims cannot be 9 cured with further amendment and are thus futile. See Bonin v. Calderon, 59 F.3d 815 , 845 10 (9th Cir. 1995) (“Futility of amendment can, by itself, justify the denial of a motion for 11 leave to amend.”). Specifically, Plaintiff’s Count Two against Defendants Deanda, Figley, 12 Prendergast, and Wagner; Counts Three, Four, Five, and Six against Defendants Buchanan, 13 Deanda, Figley, Prendergast, Wagner, and Defendant Does 1–50; and Counts Three and 14 Five against Defendant Chandler are dismissed in their entirety. These theories are barred 15 as a matter of law and leave to amend these counts would be inappropriate. However, 16 Plaintiff will be granted leave to amend Counts One through Six to cure the other 17 deficiencies identified by the Court throughout this Order. 18 Accordingly, 19 IT IS ORDERED that Defendants Motion to Dismiss (Doc. 29) is granted. 20 IT IS FURTHER ORDERED that Plaintiff’s Count One against Defendants 21 Buchanan, Deanda, Figley, Prendergast, Wagner, and Does 1–50; Count Two against 22 Defendants Buchanan and Does 1–50; and Counts Four and Six against Defendant City of 23 Chandler are dismissed without prejudice and with leave to amend to correct the 24 deficiencies identified in this Order. 25 IT IS FURTHER ORDERED that Plaintiff’s Count Two against Defendants 26 Deanda, Figley, Prendergast, and Wagner; Counts Three, Four, Five, and Six against 27 Defendants Buchanan, Deanda, Figley, Prendergast, Wagner, and Defendant Does 1–50; 28 and Counts Three and Five against Defendant City of Chandler are dismissed with 1 | prejudice and without leave to amend. 2 IT IS FURTHER ORDERED that Plaintiff may file an amended complaint no 3 later than February 18, 2024. 4 IT IS ORDERED that Defendants’ request for judicial notice is granted in part and denied in part. The Court will take judicial notice of Exhibit 5 only. 6 Dated this 21st day of January, 2025. [8] 9 LEC GS