Wilson v. Tuba City Unified School District

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Loretta Wilson, No. CV-20-08151-PCT-GMS 10 Plaintiff, ORDER 11 v. 12 Tuba City Unified School District, et al., 13 Defendants. — 14 — — 15 — 16 Pending before the Court are Defendants the United States of America, Tuba City 17 Unified School District, and Gloriana Woodie’s Motions to Dismiss for Failure to State a 18 Claim. For the following reasons, Defendant Tuba City Unified School District’s Motion 19 (Doc. 16) is denied, and Defendants the United States and Woodie’s Motion (Doc. 28) is 20 granted in part and denied in part.1 21 BACKGROUND 22 K.P., a minor, attended Tuba City High School, which is part of the Tuba City 23 Unified School District (“Defendant TCUSD”). She alleges that a fellow student, K.D., 24 “forcibly kissed and fondled” her on June 10, 2019. (Doc. 15 at 2.) She also alleges that 25 she reported the assault shortly thereafter to Defendant Gloriana Woodie (“Defendant 26 Woodie”), a counselor described as a federal employee and TCUSD agent. Id. at 3. After 27 1 The Parties’ requests for oral argument are denied because they 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 receiving her report, Defendant Woodie allegedly dismissed K.P. and directed her to return 2 to class without taking any action. Id. In the hall, K.D. attacked and sexually assaulted K.P. 3 again before she left school. K.P. now brings the instant action through her legal guardian 4 Loretta Wilson (“Plaintiff”) against Defendants TCUSD, the United States, and Gloriana 5 Woodie with her husband or wife, John Doe (“Defendants”). 6 DISCUSSION 7 I. Legal Standards 8 a. Rule 12(b)(1) 9 Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss a 10 complaint for lack of subject matter jurisdiction. “The party asserting jurisdiction has the 11 burden of proving all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 12 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178 , 13 189 (1936)). Federal courts “possess only that power authorized by Constitution and 14 statute,” and therefore “[i]t is to be presumed that a cause lies outside this limited 15 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In 16 effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise. See id. 17 b. Rule 12(b)(6) 18 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 19 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 20 elements of a cause of action”; it must contain factual allegations sufficient to “raise the 21 right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544 , 555 22 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint 23 for failure to state a claim, “allegations of material fact are taken as true and construed in 24 the light most favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213 , 1217 25 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a 26 presumption of truthfulness, and “conclusory allegations of law and unwarranted 27 inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 28 696, 699 (9th Cir. 1998). 1 II. Analysis 2 a. Defendants United States and Woodie’s Motion to Dismiss i. Counts Three and Four: Negligence and Negligence Per Se Under — 3 — the FTCA — 4 — Counts Three and Four allege negligence and negligence per se against Defendant — 5 — Woodie and Counts Seven and Eight allege the same against the United States. The Federal — 6 — Tort Claims Act (“FTCA”) is the “remedy for tortious conduct by the United States, and it — 7 — only allows claims against the United States.” F.D.I.C. v. Craft, 157 F.3d 697, 706 (9th — 8 — Cir. 1998). “Upon certification by the Attorney General that the defendant employee was — 9 — acting within the scope of his office or employment at the time of the incident out of which — 10 — the claim arose, . . . the United States shall be substituted as the party defendant. 28 U.S.C. — 11 — § 2679(d)(1). This remedy is exclusive; “[a]ny other civil action or proceeding for money — 12 — damages arising out of or relating to the same subject matter against the employee or the — 13 — employee’s estate is precluded.” 28 U.S.C. § 2679 (b)(1); Allen v. Veterans Admin., 749 14 F.2d 1386 , 1388 (9th Cir. 1984) ( “The [FTCA] provides that the United States is the sole — 15 — party which may be sued for personal injuries arising out of the negligence of its — 16 — employees.”) — 17 — Here, the Government has certified that Defendant Woodie was acting within the — 18 — scope of her employment with the United States when the alleged tortious conduct — 19 — occurred. (Doc 21-1.) The United States is therefore substituted as the party defendant for — 20 — counts Three and Four. Because this substitution renders counts Three and Four duplicative — 21 — of counts Seven and Eight, counts Three and Four are dismissed. — 22 — ii. Count Five: Constitutional Violations — 23 — Count Five alleges Defendant Woodie’s acts and omissions violated K.P.’s civil and — 24 — constitutional rights under 42 U.S.C. § 1983 . — 25 — Section 1983 entitles plaintiffs to relief against state, not federal, actors. See Sutton — 26 — v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999); Beasley v. Fed. — 27 — Bureau of Investigation, No. CV-19-04606-PHX-JJT, 2019 WL 3017609 , at *1 (D. Ariz. — 28 — July 10, 2019) (“[T]o state a § 1983 claim, a plaintiff must allege a state—not federal— 1 action.”). Thus, “[t]here is no valid basis for a claim under section 1983” where a plaintiff’s 2 allegations “are against federal officials acting under color of federal law.” Daly-Murphy 3 v. Winston, 837 F.2d 348, 355 (9th Cir. 1987). 4 Defendants assert that Plaintiff has not adequately alleged that Defendant Woodie 5 was a state actor acting under the color of state law. The Second Amended Complaint 6 (“SAC”), however, plausibly alleges that Defendant Woodie was a state actor by claiming 7 she “was operating as an employee or apparent agent of the Tuba City High School” and 8 that she was acting “under the color of law” at the time of the incident. (Doc. 15 at 3, 9.) 9 Defendants submit a declaration from the Chief Compliance Officer of the Tuba City 10 Regional Heath Care Corporation in an effort to establish that Defendant Woodie had only 11 federal authority. But in considering a motion to dismiss, the Court’s review is limited to 12 the allegations in the complaint, which must be construed as true; the Court may not 13 consider a declaration. See Fed. R. Civ. P. 12(b)(6); Lee v. City of Los Angeles, 250 F.3d 14 668, 688 (9th Cir. 2001); Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336 , 337–38 (9th Cir. 15 1996). The parties’ briefing about whether Defendant Woodie is a federal employee is thus 16 not considered to the extent that it refers to facts omitted from the SAC. 17 The allegations of the complaint thus plausibly allege that Defendant Woodie was 18 a state actor. Defendants’ Motion to Dismiss the claim is denied. 19 iii. Count Seven: Negligence Per Se 20 1. A.R.S § 15-341(A) 21 Defendants assert that Plaintiff has not adequately alleged that Defendant Woodie’s 22 actions constituted negligence per se under Arizona Revised Statute § 15-341(A) because 23 Defendant Woodie is not a school board member or employee. As explained above 24 however, the SAC plausibly alleges that Defendant Woodie “was operating as an employee 25 or apparent agent of the Tuba City High School.” (Doc. 15 at 3, 9.) The Court cannot 26 consider evidence outside the SAC to the contrary. See Fed. R. Civ. P. 12(b)(6); Lee, 250 27 F.3d at 688; Cahill, 80 F.3d at 337–38. Defendants’ motion to dismiss Plaintiff’s 28 negligence per se claims brought pursuant to A.R.S § 15-341(A) is thus denied. 1 2. TCUSD Policies 2 Under Arizona Law, violation of rules and procedures adopted by an employer 3 cannot constitute negligence per se. Bryan v. S. Pac. Co., 79 Ariz. 253, 260 , 286 P.2d 761 , 4 765 (1955) (“[T]he rules of an employer adopted for the safe operation of its business have 5 probative value in establishing whether a defendant-employer realized or should have 6 realized that his conduct involved an unreasonable risk of injury” but “would not constitute 7 negligence per se.”); see Petty v. Arizona, No. CV-15-01338-PHX-DLR, 2015 WL 8 8139807, at *4 (D. Ariz. Dec. 8, 2015) (dismissing claims of negligence per se for violation 9 of Arizona Department of Correction Policies). Like Petty, Plaintiff relies on the internal 10 policies of public entities, Tuba City High School and TCUSD, to claim negligence per se. 11 Plaintiff, however, reasons that violation of School and District policies can 12 constitute negligence per se because the rule applies to state regulations. See Manhattan13 Dickman Const. Co. v. Shawler, 113 Ariz. 549, 553 , 558 P.2d 894, 898 (1976). Indeed, in 14 Manhattan-Dickman, the Arizona Supreme Court found that violation of the General 15 Construction Safety Code adopted by the industrial commission of Arizona could 16 constitute negligence per se. Id. But there, the Code was specifically authorized by Arizona 17 law. Id. Plaintiff offers no authority suggesting TCUSD and Tuba City High School 18 policies should be construed analogously, and the Court can find no law authorizing these 19 internal policies. Thus, to the extent that Count Seven’s claims are based on allegations 20 that Tuba City High School and TCUSD’s policies establish negligence per se, Defendants’ 21 motion to dismiss is granted and the claim is dismissed with prejudice. 22 iv. Count Eight: Negligence 23 Arizona follows the Restatement (Second) of Agency § 213 for negligent hiring, 24 supervision, and training claims, Kassman v. Busfield Enterprises, Inc., 131 Ariz. 163, 166 , — 25 — 639 P.2d 353, 356 (Ct. App. 1981), which provides that “[a] person conducting an activity 26 through servants or other agents is subject to liability for harm resulting from his conduct 27 if he is negligent” in giving improper instruction, in the employment of improper persons, 28 or in the supervision of the activity. Restatement (Second) of Agency § 213 (emphasis 1 added). A claim for negligence requires a showing of duty, breach, cause, and damages. 2 Gipson v. Kasey, 214 Ariz. 141, 143 , 150 P.3d 228, 230 (2007); see also Guerra v. State, — 3 — 234 Ariz. 482, 489 , 323 P.3d 765, 772 (Ct. App. 2014) (“To prevail on a negligent training 4 claim, a plaintiff must show a defendant’s training or lack thereof was negligent and that 5 such negligent training was the proximate cause of a plaintiff’s injuries.”), vacated on other 6 grounds, 237 Ariz. 183 , 348 P.3d 423 (2015). 7 Plaintiffs have plead the necessary elements of a claim for negligent training or 8 supervision. Although Defendants assert that Plaintiffs’ allegations do not adequately 9 address how the United States’ omissions caused K.P.’s injuries, the Second Amended 10 Complaint alleges sufficient facts to state such a claim. Plaintiffs allege “[t]he United 11 States and Ms. Woodie’s supervisors, failed to adequately train and supervise Ms. Woodie 12 under the ‘High School Teen Clinic’ program.” (Doc. 15 at 12). They also allege that the 13 “violation of Plaintiff’s constitutional and other rights was caused by the conduct of Ms. 14 Woodie by TCUSD and by her federal employer,” and that “failure to train was reckless 15 and deliberately indifferent to the rights and wellbeing of K.P.” Id. at 10. These facts 16 sufficiently allege that the omission of training proximately caused the alleged 17 misconduct.2 18 b. Defendant TCUSD’s Motion to Dismiss Count 5 19 Count Five alleges Defendant Woodie’s acts and omissions violated K.P.’s civil and 20 constitutional rights under 42 U.S.C. § 1983 . 21 i. Pleading a Policy or Custom 22 Under § 1983, a municipality cannot be held liable for the acts of its employees — 23 — 24 2 Defendants also argue that Count Eight must be dismissed with prejudice because the Court lacks subject matter jurisdiction. Plaintiffs are correct that the FTCA applies only to 25 “the negligent or wrongful act or omission of any employee of the United States while acting within the scope of his office or employment,” not to generalized theories of 26 negligence asserted against the staff and employees of federal institutions as a whole. See 28 U.S.C.A. § 1346 (b)(1) (emphasis added). The complaint, however, refers to an 27 employee, rather than the United States as a whole by alleging Ms. Woodie’s supervisors failed to train her. Defendants offer no authority for their assertion that because the 28 supervisors are not identified by name, the court is stripped of subject matter jurisdiction. 1 based solely on a respondeat superior theory. Rather, municipalities are only responsible 2 for “their own illegal acts.” Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986). Further, “[i]n 3 order to establish municipal liability, a plaintiff must show that a ‘policy or custom’ led to 4 the plaintiff’s injury.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) 5 (quoting Monell v. Dep’t of Social Servs., 436 U.S. 658, 694 (1978)). Plaintiffs must 6 “demonstrate that the policy or custom of a municipality reflects deliberate indifference to 7 the constitutional rights of its inhabitants.” Id. (quoting City of Canton v. Harris, 489 U.S. 8 378, 392 (1989)). 9 A plaintiff may also prove a failure-to-train claim without showing a pattern of 10 constitutional violations where a violation “may be a highly predictable consequence of a 11 failure to equip [employees] with specific tools to handle recurring situations.” Long v. Cty. 12 of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (internal quotation marks and citation 13 omitted). However, only a “narrow range of circumstances” could prove that a 14 municipalities’ failures created a highly predictable risk of constitutional violations. Bd. of 15 Cty. Comm’rs v. Brown, 520 U.S. 397, 409 (1997); see City of Canton, 489 U.S. at 390 16 n.10 (explaining that failing to train armed officers on the constitutional limitations of 17 deadly force could be a failure that would create such an obvious risk that it could be 18 properly characterized as “deliberate indifference.”). 19 The SAC does not allege that Defendant TCUSD had a practice or policy of failing 20 to train employees. It does, however, plausibly allege that constitutional violations were a 21 highly predictable consequence of a failure to train Defendant Woodie. The Second 22 Amended Complaint alleges that “employers, supervisors, and principals of Ms. Woodie 23 failed to implement procedural safeguards, to preserve student safety involving serious 24 offenses and to prevent constitutional violations.” (Doc. 15 at 10.) Such a failure, Plaintiff 25 alleges, places Defendants “on constructive notice that its failure to train would likely result 26 in Constitutional violations” because it “was reckless and deliberately indifferent to the 27 rights and well-being of K.P.” Id. These allegations plausibly allege that K.P.’s assault was 28 a highly predictable consequence of Defendant TCUSD’s failure to train its employees 1 about constitutional safeguards. The Motion to Dismiss for failure to allege a policy or 2 custom is therefore denied. 3 ii. The Constitutional Duty to Protect from Third Parties 4 To succeed on a § 1983 claim, a plaintiff must show that she was deprived of a 5 federal constitutional or statutory right. Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th 6 Cir. 2011). However, as a general rule, the Constitution does not guarantee any affirmative 7 right to government aid or protection from third parties. Patel, 648 F.3d at 971 ; see Morgan 8 v. Gonzales, 495 F.3d 1084, 1092 (9th Cir. 2007) (“As a general rule, the government is 9 not liable for the actions of third parties.”). “There are two exceptions to this rule: (1) when 10 a ‘special relationship’ exists between the plaintiff and the state (the special-relationship 11 exception); and (2) when the state affirmatively places the plaintiff in danger by acting with 12 ‘deliberate indifference’ to a ‘known or obvious danger’ (the state-created danger 13 exception).” Id. at 971–72 (internal citations omitted). 14 Plaintiff alleges that the state-created danger exception establishes that K.P.’s 15 federally protected rights were violated. For the state-created danger exception to apply, 16 the state must (1) engage in affirmative conduct that places the plaintiff in danger; and 17 (2) act “with deliberate indifference to a known or obvious danger.” Patel, 648 F.3d at 974 . 18 First, to determine whether an actor affirmatively placed an individual in danger, 19 courts examine whether the individual “left the person in a situation that was more 20 dangerous than the one in which they found [her].” Munger v. City of Glasgow Police 21 Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000). “[A] state actor cannot affirmatively place an 22 individual in danger merely by failing to act, regardless of how reprehensible that failure 23 may be.” J.K. v. Ariz. Bd. of Regents, No. CV06-916-PHX-MHM, 2008 WL 4446712 , at 24 *5 (D. Ariz. Sept. 30, 2008); see Johnson v. City of Seattle, 474 F.3d 634, 641 (9th Cir. 25 2007) (holding that a state official’s decision to switch from an aggressive operation plan 26 to a more passive one “was not affirmative conduct that placed the . . .[p]laintiffs in danger, 27 because it did not place them in any worse position than they would have been in had the 28 police not come up with any operational plan whatsoever”). 1 Second, deliberate indifference to a known or obvious danger requires a “culpable 2 mental state.” Patel, 648 F.3d at 974 . “The state actor must ‘recognize[ ] [an] unreasonable 3 risk and actually intend[ ] to expose the plaintiff to such risks without regard to the 4 consequences to the plaintiff.’” Id. (alteration in original). 5 Plaintiff argues that Defendant Woodie was deliberately indifferent to the danger 6 she created or exacerbated by dismissing K.P. after she reported an assault to her in an 7 office or conference room. (Doc. 15 at 3, 9.) Thus, the action Plaintiff argues fits within 8 this exception is Ms. Woodie’s decision to return K.P. to the classroom after they met. 9 Construed in a light most favorable to the Plaintiff, this order could have “affirmatively 10 created an actual, particularized danger [that the plaintiff] would not otherwise have faced.” 11 Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). Plaintiff alleges that 12 Defendant Woodie “sent K.P. from the safety of her office or conference room to the 13 known danger of an unsupervised hallway of Tuba City High School where K.D. was 14 waiting unabated.” (Doc 15 at 9.) The facts as pled—that Defendant Woodie knowingly 15 sent K.P. directly into a hall where K.D. was waiting—are sufficient to allege that the harm 16 she faced was increased because she was returned to the hallway. The Court draws no 17 conclusions about the sufficiency of any other factual alternatives. Further, because 18 Plaintiff alleges that Defendant Woodie was aware of the first assault, they have plausibly 19 alleged that she acted with deliberate indifference to the danger she created. The 20 Defendant’s motion to dismiss Count Five is therefore denied. 21 CONCLUSION 22 Accordingly, Defendant TCUSD’s Motion is denied and Defendants United States 23 and Woodie’s Motion is granted in part and denied in part. 24 IT IS THEREFORE ORDERED that Defendant Tuba City Unified School 25 District’s Motion to Dismiss (Doc. 16) is DENIED. 26 IT IS FURTHER ORDERED that Defendants United States of America and 27 Woodie’s Motion to Dismiss (Doc. 28) is GRANTED IN PART and DENIED IN PART 28 as follows: 1 1. Claims Three and Four are dismissed with prejudice. 2 2. Claim Seven is dismissed with prejudice to the extent it relies on Tuba City High 3 School or Tuba City Unified School District Policies to claim negligence per se. 4 3. Defendants’ Motion to Dismiss is denied as to all other claims. 5 Dated this 3rd day of December, 2020. □□ 5 A Whacrsay Sooo) 8 Chief United states District Judge — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — -10-