Johnson v. Phoenix, City of

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Beatrice Johnson, No. CV-23-00495-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. [15] 16 Pending before the Court is Defendant Maricopa County and Maricopa County 17 Office of the Medical Examiners’ Motion to Dismiss Plaintiff’s First Amended Complaint 18 (Doc. 29). The parties stipulated to the amendment of the complaint after the County filed 19 its motion to dismiss. Nevertheless, the parties agree that: (1) the Plaintiff’s Second 20 Amended Complaint (“SAC”) still names the County’s Office of the Medical Examiner 21 (“OME”) as a party, (2) that the County moved to dismiss the OME as a party in the Motion 22 to Dismiss, and, (3) the motion further moved to dismiss the first three of the causes of 23 action that remain in the SAC. These matters have thus been fully briefed. After the filing 24 of the SAC the City of Phoenix (“City”) joined in specified parts of the County Defendants’ 25 Motion to Dismiss (Doc. 38). For the reasons below, the motion is granted. 26 BACKGROUND 27 Pursuant to the facts pleaded in the SAC which the Court accepts as true, Plaintiff’s 28 sister Dorothy Dale-Chambers, was struck and killed while crossing the street in Phoenix 1 on April 26, 2022. Ms. Dale-Chambers was unhoused and the area in which she was killed 2 is the location of many other similarly unhoused persons. The intersection by/at which she 3 was killed did not have a traffic signal and was considered a high-density crash zone. Her 4 body was thereafter identified and transported to the Maricopa County Medical Examiner’s 5 Office where her identification was confirmed. Plaintiff brings this action on behalf of 6 herself and is in the process of perfecting her right to assert claims on behalf of the estate 7 of the decedent.1 8 ANALYSIS 9 1. The Appropriate Parties. 10 A state governmental entity may be sued only if the legislature has so provided. 11 Kimball v. Shofstall, 17 Ariz. App. 11, 13 (1972. Plaintiff concedes that the OME is not a 12 Jural entity. (Doc. 37 at 6). It thus cannot be sued even if the County can be based on the 13 OME’s actions. The Maricopa County Office of the Medical Examiner is thus dismissed 14 as a party to this lawsuit. 15 The SAC now asserts claims on behalf of Decedent’s estate which may be permitted 16 under A.R.S. § 12-612. Thus, at least at present, there is no basis to dismiss the Estate’s 17 claims against the City. 18 2. Plaintiff Fails to State a Plausible Equal Protection Claim (Count One) 19 In her SAC Plaintiff alleges that her sister was entitled to equal protection and 20 treatment, and that her sister was a member of a “suspect class.” According to the SAC, 21 Maricopa County failed to notify decedent’s next of kin that she had died. Further the SAC 22 alleges that this failure resulted from an official policy or practice of Defendants. The SAC [23] 1 Both parties attach a number of materials to the motion papers which they ask the Court 24 to consider in ruling on this motion. “Because Rule 12(b)(6) review is confined to the complaint, the court typically does not consider material outside the pleadings (e.g., facts 25 presented in briefs, affidavits, or discovery materials) when deciding such a motion.” Scripps America Inc. v. Ironridge Global LLC,119 F.Supp.3. 1213, 1230 (C.D. Cal. 2015). 26 Although the Court can consider such materials as are uncontested and incorporated into the complaint, the supplemental materials here do not qualify. Further, while in appropriate 27 circumstances the Court can take judicial notice that a newspaper article has been published, it does not take judicial notice of the facts asserted in the article unless they are 28 relevant and uncontested. The allegations necessary to make a claim plausible need to be contained in the SAC. The Court thus considers the facts alleged in the SAC. 1 alleges this is a violation of the decedent sister’s equal protection rights under § 1983. 2 But there are several problems with count one as presently stated. 3 First, the claim made is for a denial of the decedent sister’s right to equal protection 4 which occurred after her decease. Yet, “the Civil Rights Act, 42 U.S.C. § 1983 . . . does 5 not provide a cause of action on behalf of a deceased based upon alleged violation of the 6 deceased’s civil rights which occurred after h[er] death.” Guyton v. Phillips, 606 F.2d 248 , 7 250 (9th Cir. 1987). 8 Second, the homeless are not a suspect class under the constitution. Sanchez v. City 9 of Fresno, 914 F.Supp.2d 1079, 1108 (E.D. Cal. 2102) (“No court has ever held the 10 homeless to be a suspect class under this standard.”). Of course, Plaintiff’s decedent may 11 be a member of a suspect class unidentified in the complaint. To the extent she is, she must 12 nevertheless state sufficient facts to make it not merely possible, but plausible that the city 13 and/or the county have a policy or practice of failing to notify next of kin of the decease of 14 homeless persons of that particular class. “[W]here the well-pleaded facts do not permit 15 the court to infer more than the mere possibility of misconduct, the complaint has alleged— 16 but it has not “show[n]”—“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 17 8(a)(2).” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Plaintiff has pleaded insufficient 18 facts to meet this plausibility standard. Therefore, Count One is dismissed with leave to 19 amend within thirty days of the date of this Order. 20 3. Plaintiff Fails to State A Plausible Familial Association Claim (Count Two) 21 In Count Two of her SAC Plaintiff alleges that the Defendants’ “[f]ailure to notify 22 Decedent’s family within a reasonable timeframe constitutes a violation of the recognized 23 right of familial association.” (Doc. 43 at ¶ 41). There are again problems with count two 24 as presently stated. 25 The Ninth Circuit does recognize that a “child’s interest in her relationship with a 26 parent is sufficiently weighty by itself to constitute a cognizable liberty interest” and that 27 “a parent has a constitutionally protected liberty interest under the Fourteenth Amendment 28 in the companionship and society of his or her child.” Curnow By and Through Curnow 1 v. Ridgecrest Police, 952 F2d 321, 325 (9th Cir. 1991). Estate of Osuna v. County of 2 Stanislaus, 392 F. Supp.3d 1162 (E.D. Cal. 2019) Yet, Plaintiff is not the decedent’s 3 parent, nor is the decedent’s estate. Nor is it apparent how Plaintiff, or the decedent’s estate 4 can claim the loss of the companionship and society of her sister due to the actions of the 5 Defendants. Ward v. City of San Jose, 967 F.2d 280 (9th Cir. 1991) (holding that adult, 6 non-cohabiting siblings do not “possess a cognizable liberty interest in their [sister’s] 7 companionship.”) 8 Even assuming that Plaintiff as the decedent’s sister could qualify to state a claim 9 for the denial of the right of familial association, and that there exists an associational right 10 with respect to the decedent once she has died, the Plaintiff’s claims must allege something 11 more than mere negligence against the Defendants. “[T]he Due Process Clause is simply 12 not implicated by a negligent act of an official causing unintended loss of or injury to life, 13 liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). To the extent that 14 Plaintiff placed their familial association claim under the First rather than the Fourteenth 15 Amendment it does not affect the present analysis because, courts “analyze the right of 16 intimate association in the same manner regardless [of] whether we characterize it under 17 the First or Fourteenth Amendments.” Mann v. City of Sacramento, 748 Fed. App’x 112, 18 115 (9th Cir. 2018). And Plaintiff’s Second Count in the SAC simply fails to present 19 well-pleaded facts which permit the Court to infer that Defendants were more than 20 negligent in causing or failing to notify Plaintiff of her sister’s death. Therefore, Count 21 Two is dismissed with leave to amend within thirty days of the date of this Order. 22 4. Plaintiff Fails to State A Plausible Due Process Violation (Count Three) 23 Count Three of Plaintiff’s SAC is dismissed with leave to amend for similar reasons. 24 Marsh v. County of San Diego, 680 F.3d 1148, 1154 (9th Cir. 2007) recognizes a substantive 25 due process right in family members “to direct and control disposition of the body of the 26 deceased” insofar as it protects from the wrongful dissemination of death photos of a family 27 member. But “[t]o violate substantive due process, the alleged conduct must ‘shock[] the 28 conscience’ and ‘offend the community’s sense of fair play and decency.’” Id., quoting 1|| Rochin v. California, 342 U.S. 165, 172-73 (1952). In this case, Plaintiff fails to allege 2|| what the Defendants did to “shock the conscience” sufficient to make it probable that they 3|| had violated Plaintiffs familial substantive due process right to “direct and control 4|| disposition of the body of the deceased.” They also fail to plausibly allege how the 5 || Defendants acted with more than negligence in committing that violation. Daniel, 474 6|| U.S. at 330. Therefore, Count Three is dismissed with leave to amend within thirty days of the date of this Order. 8 IT IS THEREFORE ORDERED that the County Defendants’ Motion to Dismiss 9|| (Doc. 29) is granted. Therefore, the Office of the Medical Examiner is dismissed as a party 10 || and counts one, two and three of Plaintiff's complaint are dismissed with leave to amend 11 |} within thirty days of the date of this Order. 12 Dated this 9th day of February, 2024. 13 Wi, A Whacrsay Sooo) 15 Chief United States District Judge [28] _5-