Fernandez v. Tempe, City of

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Alexys Patricia Fernandez, No. CV-25-02673-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 City of Tempe, et al., 13 Defendants. [14] 15 Pending before the Court is the Tempe Defendants’ Motion to Dismiss Plaintiff’s 16 First Amended Complaint (“FAC”) under Federal Rule of Civil Procedure 12(b)(6). 17 (Doc. 4.) The Tempe Defendants are the City of Tempe, the Tempe Police Department, 18 and Tempe police officers Max Staab and Lara Camberg. The Motion is fully briefed. 19 (Docs. 13, 19.) The Court will grant in part and deny in part the Motion. 20 I. BACKGROUND 21 The following summary is taken from the allegations in the FAC. (Doc. 1-1 22 at 34-46.) The Court accepts the allegations in the FAC as true for the purposes of assessing 23 the pending motion to dismiss. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 24 1025, 1031 (9th Cir. 2008). 25 On May 15, 2024, Plaintiff Alexys Patricia Fernandez, then seventeen, was using 26 the pool at Camden Tempe West Apartments, where her father lived. (Doc. 1-1 at 36 27 ¶¶ 15-16.) Earlier that morning, Defendant Shahid Muhammad toured the complex with 28 his mother and exhibited erratic behavior, prompting Camden staff to contact the Tempe 1 police. (Id. at 38 ¶ 26.) 2 Later that day, Plaintiff alleges Muhammad climbed over the locked pool gate, 3 threw his shoes in the water, and grabbed her towel before wandering the deck. (Id. at 36-37 4 ¶¶ 17-19.) A Camden employee asked him to leave, but he refused. (Id. at 37 ¶ 19.) Plaintiff 5 saw Officers Staab and Camberg outside the pool fence behind a glass partition. (Id.) 6 Muhammad then jumped into the pool, climbed out, and again approached Plaintiff. 7 (Id.) She alleges that neither Camden staff nor the officers intervened before Muhammad 8 assaulted her by grabbing her torso, thrusting his hips against her, and attempting to remove 9 her top. (Id. ¶¶ 20-21.) At that point, the officers entered the pool area, deployed a taser, 10 and restrained Muhammad. (Id. ¶ 22.) Plaintiff was shocked by the taser and bitten on the 11 hip during the struggle, leaving a permanent scar. (Id. at 37, 39 ¶¶ 22, 32.) 12 Plaintiff claims Defendants failed to protect her despite knowledge of Muhammad’s 13 erratic behavior, causing lasting physical and psychological injuries. (Id. at 38-39 14 ¶¶ 27-32.) She asserts federal claims under 42 U.S.C. § 1983 against the Tempe Defendants 15 (alleging violations of the Fourth and Fourteenth Amendments), state law negligence and 16 gross negligence claims against the Tempe Defendants, and premises liability and 17 negligence claims against the Camden entities. (Id. at 39-44 ¶¶ 33-53.) Muhammad is also 18 sued under state law for assault and related torts. (Id. at 44 ¶¶ 54-56.) 19 II. LEGAL STANDARD 20 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 21 state a claim upon which relief can be granted “tests the legal sufficiency of a claim.” 22 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A court may dismiss a complaint “if 23 there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under 24 a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 25 2011) (citation modified). 26 A complaint must assert sufficient factual allegations that, when taken as true, “state 27 a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 28 Plausibility is more than a mere possibility; a plaintiff is required to provide “more than 1 labels and conclusions, and a formulaic recitation of the elements of a cause of action will 2 not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When analyzing the 3 sufficiency of a complaint, the well-pled factual allegations are taken as true and construed 4 in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th 5 Cir. 2009). 6 III. DISCUSSION 7 A. Claims Against the Tempe Police Department 8 The Tempe Defendants assert that the Tempe Police Department (“TPD”) “is a 9 non-jural entity and should therefore be dismissed.” (Id. at 2.) Plaintiff does not object. 10 (Doc. 13 at 2 n.1.) The Court agrees that the TPD is a non-jural entity and sub-unit of the 11 municipality where the City is already a party. See Smith v. City of Tempe, 12 No. CV-25-02518-PHX-DWL, 2025 WL 2107656 , at *1 (D. Ariz. July 28, 2025). 13 Accordingly, the federal and state claims against the TPD are dismissed with prejudice. 14 B. Claims Under § 1983 15 Plaintiff asserts federal claims under § 1983 against the Tempe Defendants, alleging 16 violations of the Fourth and Fourteenth Amendments and municipal liability against the 17 City of Tempe. (Doc. 1-1 at 39-42 ¶¶ 33-37, 41-46.) The Tempe Defendants move to 18 dismiss, arguing: (1) Plaintiff fails to allege an underlying constitutional violation against 19 the officers; (2) qualified immunity applies; and (3) Plaintiff fails to state a plausible 20 Monell theory against the City. (Doc. 4 at 2-3, 9-12.) 21 To state a § 1983 claim, a plaintiff must allege that: (1) a right secured by the 22 Constitution or laws of the United States was violated, and (2) a person acting under the 23 color of state law committed the alleged violation. West v. Atkins, 487 U.S. 42, 48 (1988). 24 1. Fourth Amendment 25 The FAC fails to state a § 1983 Fourth Amendment claim. The Fourth Amendment 26 protects against unreasonable searches and seizures, but the FAC alleges no facts showing 27 that the officers searched, used force against, or detained Plaintiff. (Doc. 1-1 at 40-41 ¶¶ 36, 28 42.) Instead, Plaintiff offers only conclusory allegations, which are insufficient at the 1 pleading stage. See Manlove v. Cnty. of San Diego, 759 F. Supp. 3d 1057 , 1063-65 (S.D. 2 Cal. 2024 ) (dismissing Fourth Amendment claims where the complaint failed to identify 3 which officer searched, seized, or arrested plaintiff and relied on conclusory allegations). 4 Regardless, Plaintiff failed to respond to the Tempe Defendants on this point. See 5 Walsh v. Nev. Dep’t of Hum. Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (finding claim 6 “abandoned” where plaintiff requested injunctive relief in complaint but failed to address 7 it in opposition to motion to dismiss). Because amendment would be futile absent a 8 plausible seizure theory, the Fourth Amendment claim is dismissed with prejudice. See 9 Fed. R. Civ. P. 15(a)(2). 10 2. Fourteenth Amendment 11 The FAC also fails to state a § 1983 claim for violating the Fourteenth Amendment 12 against Officers Staab and Camberg. The Due Process Clause does not obligate state 13 officials to protect individuals from violence. DeShaney v. Winnebago Cnty. Dep’t of Soc. 14 Servs., 489 U.S. 189, 195 (1989); see also Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th 15 Cir. 2011) (“[T]he Fourteenth Amendment’s Due Process Clause generally does not confer 16 any affirmative right to governmental aid, even where such aid may be necessary to secure 17 life, liberty, or property interests.”). 18 Exceptions to this rule are narrow. The “special relationship” exception arises when 19 the state assumes custody over the plaintiff. Patel, 648 F.3d at 971-72 . Plaintiff does not 20 allege she was in custody; to the contrary, she was using her father’s apartment complex 21 amenities when the incident occurred. (Doc. 1-1 at 36 ¶¶ 15-16.) She also fails to refute 22 this in her Response. 23 The “state-created danger” exception applies “when the state affirmatively places 24 the plaintiff in danger by acting with ‘deliberate indifference’ to a ‘known or obvious 25 danger.’” Patel, 648 F.3d at 971 -72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 26 1996)). To succeed on the state-created danger exception, a plaintiff must show 27 “affirmative conduct on the part of the state [actor] placing the plaintiff in danger” and that 28 the state actor behaved “with deliberate indifference to a known or obvious danger.” Id. 1 at 974 (citation modified). 2 Here, the FAC alleges that the officers observed Muhammad’s “erratic and 3 irrational behavior” and delayed entering the pool area until after he assaulted Plaintiff. 4 (Doc. 1-1 at 38-39 ¶¶ 28, 31.) But such allegations describe inaction, not affirmative 5 conduct increasing danger. See Johnson v. City of Seattle, 474 F.3d 634, 641 (9th Cir. 6 2007). Nor does the FAC allege facts showing that the officers knew Plaintiff herself faced 7 a particularized, imminent risk of sexual assault as opposed to a generalized risk from 8 Muhammad’s behavior. Finally, the repeated references to “deliberate indifference” 9 (Doc. 1-1 at 41-42 ¶¶ 42, 45) are conclusory and do not substitute for factual allegations 10 plausibly showing deliberate indifference. This claim is therefore dismissed without 11 prejudice and with leave to amend. 12 3. Municipal Liability 13 Plaintiff brings a Monell claim against the City of Tempe, alleging that it maintained 14 an unconstitutional policy or practice and failed to train its officers. (Doc. 1-1 at 40 15 ¶¶ 34-36.) In Monell v. Department of Social Services, the Supreme Court held that a 16 municipality generally is not liable for a § 1983 violation under a theory of respondeat 17 superior for the actions of its subordinates. 436 U.S. 658, 691 (1978). Instead, municipal 18 liability arises only where a constitutional injury results from the municipality’s own 19 actions—such as the implementation of an official policy or custom, a deliberate omission 20 amounting to official policy, or a decision ratified by an official with final policymaking 21 authority. Andrich v. Kostas, 470 F. Supp. 3d 1048 , 1063 (D. Ariz. 2020). 22 Because the Court has dismissed Plaintiff’s Fourth and Fourteenth Amendment 23 claims against the officers, she has not plausibly alleged any underlying constitutional 24 violation to support municipal liability under Monell. This defect is fatal to her Monell 25 theories. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (“If a person has 26 suffered no constitutional injury at the hands of the individual police officer, the fact that 27 the departmental regulations might have authorized the use of constitutionally excessive 28 force is quite beside the point.”). 1 Regardless, the two relevant Monell theories here are: (1) a policy, practice, or 2 custom that caused the violation, and (2) a failure to train or supervise amounting to 3 deliberate indifference. See Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). 4 To plead either, a plaintiff must allege facts beyond formulaic recitations. AE ex rel. 5 Hernandez v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). Here, the FAC does not. 6 First, the FAC fails to plausibly allege a Monell claim based on policy. To defeat 7 the Tempe Defendants’ Motion, Plaintiff’s Monell violation regarding an official policy 8 theory must (1) identify the challenged policy; (2) explain the policy’s deficiency; 9 (3) explain how the policy caused the plaintiff harm; and (4) explain how the policy 10 amounted to deliberate indifference. See Dougherty, 654 F.3d at 900 . The FAC, however, 11 broadly alleges that the City “promulgated formal and/or informal policies and practices 12 discouraging action by its officers to engage in proactive behavior and to avoid 13 confrontation.” (Doc 1-1 at 40 ¶ 36.) 14 At most, this language suggests a general deficiency in officer initiative. But the 15 FAC does not identify a specific policy, connect it to Plaintiff’s injuries as a moving force, 16 or allege facts showing that constitutional violations were a plainly obvious result. See id. 17 Accordingly, this claim lacks any factual allegations that would separate it from the 18 “formulaic recitation of a cause of action’s elements” deemed insufficient by Twombly. See [19] 550 U.S. at 545 . 20 Second, the FAC also fails to plausibly allege a failure to train or supervise claim. 21 Municipal liability may arise when inadequate training causes constitutional injury, but 22 “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a 23 claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Deliberate 24 indifference typically requires “[a] pattern of similar constitutional violations by untrained 25 employees.” Id. at 62 . 26 Here, Plaintiff asserts only that “this sort of deliberate inaction has happened on 27 additional occasions.” (Doc. 1-1 at 40 ¶ 36.) But this is another example of a formulaic 28 recitation of the cause of action without substantiating facts. See Twombly, 550 U.S. at 545 . 1 This vague reference does not identify what those other occasions were, what rights were 2 violated, or how they put the City on notice. 3 Accordingly, the FAC does not plausibly allege a predicate constitutional violation 4 or sufficient facts identifying a municipal policy, custom, or training deficiency. The 5 § 1983 claims against the City under Monell are therefore dismissed without prejudice and 6 with leave to amend. 7 4. Qualified Immunity 8 Because the Fourteenth Amendment theory is not plausibly pled, the Court need not 9 reach qualified immunity. See Keates v. Koile, 883 F.3d 1228, 1234-35 (9th Cir. 2018). On 10 this argument, the Motion is denied without prejudice. 11 C. State Law Negligence and Gross Negligence Claims 12 The FAC alleges negligence and gross negligence claims against the Tempe 13 Defendants under Arizona law. (Doc. 1-1 at 41-42 ¶¶ 38-40, 43, 45-46.) 14 1. Ordinary Negligence 15 Plaintiff’s ordinary negligence theory is foreclosed by statute. A.R.S. 16 § 12-820.02(A)(1) provides immunity to public employees and entities for injuries arising 17 out of “[t]he failure to make an arrest or the failure to retain an arrested person in custody,” 18 absent gross negligence or intent to cause injury. Plaintiff’s negligence theory rests on the 19 allegation that officers observed Muhammad but failed to enter, engage, or otherwise stop 20 him before the assault—i.e., a failure to make an investigatory stop that could lead to an 21 arrest. (Doc. 1-1 at 39 ¶ 32.) Arizona courts interpret § 12-820.02(A)(1) to encompass such 22 failures. See Walls v. Ariz. Dep’t of Pub. Safety, 170 Ariz. 591, 595 (App. 1991) (construing 23 “failure to make an arrest” to include “failure to make an investigatory stop” and holding 24 that officers could not “be liable for ordinary negligence”). Accordingly, Plaintiff’s simple 25 negligence claim against the City and the officers is barred by statute and is dismissed with 26 prejudice. 27 2. Gross Negligence 28 Plaintiff’s gross negligence theory requires first establishing that the Tempe 1 Defendants owed her a duty of care. Hogue v. City of Phoenix, 240 Ariz. 277, 280 (App. 2 2016) (“To establish a claim of gross negligence, the plaintiff must prove, among other 3 things, the existence of a duty of care.”). “Duties are based either on special relationships 4 recognized by the common law or on relationships shaped by public policy.” Perez v. 5 Circle K Convenience Stores, Inc., 259 Ariz. 221 , 225 (2025). Moreover, “to establish 6 gross negligence, the claimant essentially must show wanton misconduct that is flagrant 7 and evinces a lawless and destructive spirit.” Badia v. City of Casa Grande, 195 Ariz. 349 , 8 356 (App. 1999) (citation modified). The FAC pleads neither. 9 The FAC relies on conclusory assertions that the Tempe Defendants acted with 10 “gross negligence” in failing to control the public and police force “in their duties and 11 responsibilities.” (Id. at 41-42 ¶¶ 39, 45.) In her Response, Plaintiff contends the case 12 presents “a textbook example of a special relationship.” (Doc. 13 at 8.) But the only fact 13 she cites is the presence of the officers responding to Muhammad’s erratic behavior. (Id. 14 at 8-9.) That is insufficient. Arizona law is clear that “a police agency’s mere existence 15 does not create a duty to guarantee the safety of individual members of the public.” Hogue, [16] 240 Ariz. at 281 ; Austin v. City of Scottsdale, 140 Ariz. 579 , 582 n.2 (1984) (noting that 17 police are not “a general insurer of safety”). 18 A special relationship arises only where officers provide specific assurances or 19 otherwise undertake to protect a particular individual, creating justifiable reliance. Noriega 20 v. Town of Miami, 243 Ariz. 320 , 327 (App. 2017); see also Hogue, 240 Ariz. at 280 . Austin 21 illustrates this principle: there, officers opened a special protective file and took affirmative 22 measures for a specifically threatened victim, which created a duty. 140 Ariz. at 581-82 . 23 Here, by contrast, the FAC alleges no assurances or affirmative steps directed at Plaintiff. 24 The officers merely observed Muhammad until he attacked, which is inaction—not a 25 special relationship. 26 Even if duty were assumed, the FAC does not plausibly allege the heightened mental 27 state required for gross negligence. Gross negligence requires more than ordinary 28 carelessness; it is “a conscious choice of a course of action” despite serious danger, 1 Roebuck v. Mayo Clinic, No. CV-23-0262-PR, 2025 WL 2627916 , at *4 (Ariz. Sept. 12, 2 2025), and conduct creating “an unreasonable risk of bodily harm” and involving “a high 3 probability of substantial harm.” Garibay v. Johnson, 259 Ariz. 248 , 258 (2025). The FAC 4 offers only conclusory assertions without facts showing an affirmative, conscious 5 risk-taking by these Defendants toward Plaintiff. (Doc. 1-1 at 39 ¶ 31, 42 ¶ 45.) Because 6 the FAC does not plausibly state a gross negligence claim, that claim is dismissed without 7 prejudice and with leave to amend. 8 IV. CONCLUSION 9 Accordingly, 10 IT IS ORDERED granting in part and denying in part the Tempe Defendants’ 11 Motion to Dismiss (Doc. 4). All claims against the Tempe Police Department are dismissed 12 with prejudice. Plaintiff’s § 1983 claims under the Fourth Amendment are dismissed with 13 prejudice. Plaintiff’s § 1983 claims under the Fourteenth Amendment, the Monell claim 14 against the City of Tempe, and the state law gross negligence claim against the Tempe 15 Defendants are dismissed without prejudice. Plaintiff’s state law simple negligence claim 16 against the Tempe Defendants is dismissed with prejudice. The Tempe Defendants’ 17 qualified immunity defense is denied without prejudice. 18 IT IS FURTHER ORDERED that Plaintiff may file an amended complaint as to 19 the claims dismissed without prejudice no later than October 30, 2025. 20 IT IS FURTHER ORDERED that if no amended complaint is filed by 21 October 30, 2025, the Clerk of Court must dismiss those claims without further notice to 22 Plaintiff or order of this Court. 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS FINALLY ORDERED that oral argument on this Motion is vacated 2|| (Doc. 21). The Court finds a hearing unnecessary because the parties fully briefed the issue, || and oral argument would not aid the decisional process. See LRCiv. 7.2(f). The Rule 16 Scheduling Conference will proceed as previously scheduled. 5 Dated this 30th day of September, 2025. [6] ’ Wichal T. Hburde 8 Michael T, Liburdi 9 United States District Judge [28] -10-