Reeves v. Show Low, City of et al, No. 3:2008cv08157 - Document 22 (D. Ariz. 2009)
Court Description: ORDER granting 12 Motion to Dismiss as follows: (1) all federal claims alleged in the Complaint against the State of Arizona and the Arizona Department of Public Safety are dismissed with prejudice; (2) all state law claims alleged in the Complaint against the State of Arizona are dismissed without prejudice; (3) all state law claims alleged in the Complaint against the Arizona Department of Public Safety are dismissed with prejudice; and (4) all state law claims alleged in the Complaint again st defendant Sergeant Brian Swanty are dismissed with prejudice; all claims alleged in the Complaint against defendant Spouse Swanty and defendant Spouse Fellows are dismissed without prejudice; the remaining parties shall file an Amended Joint Case Management Report by 5/26/09; the Scheduling Conference shall be held on 6/8/09 at 11:30 a.m. in Courtroom 601.. Signed by Judge Paul G Rosenblatt on 4/27/09.(REW, )
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Reeves v. Show Low, City of et al 1 Doc. 22 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Karen Christina Reeves, Plaintiff, 11 vs. 12 City of Show Low, et al., 13 Defendants. 14 15 ) ) ) ) ) ) ) ) ) No. CV-08-8157-PCT-PGR ORDER The gist of the plaintiff’s allegations in this action is that excessive force 16 was used upon her during an incident in which defendant Justin Fellows, a City of 17 Show Low police officer, in the presence of defendant Sergeant Brian Swanty, an 18 Arizona Department of Public Safety officer, used a Taser on her while she was 19 handcuffed. Pending before the Court is the Motion to Dismiss (doc. #12) filed by 20 defendants State of Arizona, the Arizona Department of Public Safety (“DPS”), 21 and Sergeant Swanty (collectively the “State defendants”.) The motion, filed 22 pursuant to Fed.R.Civ.P. 12(b)(6), seeks the dismissal of all of the federal civil 23 right claims and related state tort claims raised against the State and the DPS, 24 and the dismissal of the state law tort claims raised against Sergeant Swanty. 25 Having reviewed the parties’ original and supplemental memoranda in light of the 26 allegations of the complaint, the Court finds that the motion to dismiss should be Dockets.Justia.com 1 2 granted as set forth herein. The State defendants argue that the complaint should be dismissed 3 as to the State and the DPS in part because (1) the claims are barred by the 4 Eleventh Amendment; (2) the State is not a “person” for purposes of 42 U.S.C. 5 § 1983, and (3) the DPS is a non-jural entity. All three defenses are meritorious 6 as a matter of law and the plaintiff does not argue otherwise in her response - she 7 in fact concedes that all of her claims against the State and the DPS are barred 8 by the Eleventh Amendment. Her sole argument is that the claims against these 9 defendants should be dismissed without prejudice, whereas the state defendants 10 argue that these defendants should be dismissed with prejudice. 11 The Court agrees with the State defendants that the plaintiff’s § 1983 12 claims against the State and the DPS must be dismissed with prejudice because 13 a § 1983 claim cannot, as a matter of law, be maintained in either federal or state 14 court against a state or an arm of a state. See Pittman v. Oregon, Employment 15 Dept., 509 F.3d 1065, 1072 (9th Cir.2007). The Court also agrees that all of the 16 state claims against the DPS must also be dismissed with prejudice because the 17 DPS is not a jural entity subject to suit under Arizona law. The Court, however, 18 agrees with the plaintiff that the state law claims against the State must be 19 dismissed without prejudice because the Eleventh Amendment sovereign 20 immunity doctrine does not apply in state court.1 See Freeman v. Oakland Unified 21 1 22 23 24 25 26 The State defendants argue for the first time in their reply that the non-§ 1983 claims raised against the State should be dismissed with prejudice because refiling them in state court would be futile for various reasons, including: (1) the plaintiff’s Notice of Claim gave insufficient notice of her state law claims; (2) the plaintiff fails to allege a prima facie case for common-law tort claims; (3) the plaintiff’s claims are based on an unrealistic and unfounded standard of care; and (4) that the plaintiff’s claims are speculative. The State defendants do not, -2- 1 School District, 179 F.3d 846, 847 (9th Cir.1999) (Court ordered that a claim 2 barred in federal court by the Eleventh Amendment be dismissed without 3 prejudice so that it could be re-filed in a court of competent jurisdiction.) 4 The State defendants also argue that the state law claims against them are 5 precluded under Arizona’s Notice of Claim statute, A.R.S. § 12-821.01.2 One 6 argument raised in their motion-related memoranda is that the plaintiff did not 7 properly serve her notice of claim on Sergeant Swanty. 8 Arizona’s notice of claim statute, A.R.S. § 12-821.01(A), provides in part 9 that “[p]ersons who have claims against ... a public employee shall file claims with 10 the person or person authorized to accept service for the ... public employee as 11 set forth in the Arizona rules of civil procedure within one hundred eighty days 12 after the cause of action accrues.” The failure to properly serve the required 13 notice of claim on the individual public employee defendant prior to suit requires 14 the dismissal of the suit against that defendant. Lee v. State, 182 P.3d 1169, 15 1171 (Ariz.2008) (“If a claimant fails to file the notice of claim as required, the 16 claim is barred.”) 17 Since the State defendants do not dispute the issue, the Court accepts for 18 the purpose of resolving the motion to dismiss that the plaintiff mailed the notice 19 of claim to Sergeant Swanty using the post office box address of the Phoenix 20 21 22 23 however, cite to any case law requiring such issues to be resolved by this Court when state claims are dismissed pursuant to the Eleventh Amendment, and the Court declines to reach them. 2 24 25 Because the Court is dismissing the state law claims against the State and the DPS on other grounds, it concludes that this issue is pertinent only as to Sergeant Swanty. 26 -3- 1 office of the DPS, and sent a facsimile copy of the notice to Sergeant Swanty 2 using a DPS fax number, and that the mailed copy was not returned as 3 undeliverable by the U.S. Postal Service and that the faxed copy was 4 successfully transmitted to the DPS telephone number to which it was sent. The 5 acceptance of those facts, however, is not sufficient to establish that the plaintiff 6 has met her burden of establishing proper service of the notice of claim. The 7 initial, and decisive, issue here is not whether service of a notice of claim may be 8 accomplished through the regular mail, it can, see Lee v. State, 182 P.3d at 1173 9 (“We hold that a filing under A.R.S. § 12-821.01(A) may be accomplished through 10 the regular mail, and that proof of mailing is evidence that the governmental entity 11 received the notice[,]”) nor whether Sergeant Swanty at some point actually 12 received the mailed notice or the faxed copy, see Falcon v. Maricopa County, 144 13 P.3d 1254, 1256 (Ariz.2006) (Actual notice and substantial compliance do not 14 excuse failure to comply with the statutory requirements of § 12-821.01(A)), but 15 whether the plaintiff’s attempt to individually serve Sergeant Swanty by sending 16 the notice of claim to him through the Phoenix DPS office was statutorily proper. 17 The Court concludes as a matter of law that it was not. 18 Pursuant to § 12-821.01, a notice of claim must be filed with a person 19 authorized by the Arizona Rules of Civil Procedure to accept service. Under Rule 20 4.1(d), service on an individual means either personal service, service at the 21 individual’s dwelling house or usual place of abode through a person of suitable 22 age and discretion then residing therein, or service through an agent authorized 23 by appointment or by law to receive service. The plaintiff’s attempted service on 24 Sergeant Swanty through the DPS Phoenix office does not satisfy any of these 25 requirements. See DeBinder v. Albertson’s, Inc., 2008 WL 828789, at *3 (D.Ariz. 26 -4- 1 March 26, 2008) (Court dismissed state law claims against police officer 2 Clevinger due to the plaintiffs’ failure to properly comply with the service 3 requirement of A.R.S. § 12-821.01 because the notice of claim directed to Officer 4 Clevinger was merely sent by certified mail to the Bullhead City Police 5 Department to the attention of Officer Clevinger.) Because the plaintiff failed to 6 properly file her notice of claim with Sergeant Swanty, the Court will dismiss all of 7 the state law claims raised against him with prejudice. Therefore, 8 IT IS ORDERED that the Motion to Dismiss (doc. #12), filed by defendant 9 State of Arizona, the Arizona Department of Public Safety, and Sergeant Brian 10 Swanty, is granted pursuant to Fed.R.Civ.P. 12(b)(6) as follows: (1) all federal 11 claims alleged in the Complaint against the State of Arizona and the Arizona 12 Department of Public Safety are dismissed with prejudice; (2) all state law claims 13 alleged in the Complaint against the State of Arizona are dismissed without 14 prejudice; (3) all state law claims alleged in the Complaint against the Arizona 15 Department of Public Safety are dismissed with prejudice; and (4) all state law 16 claims alleged in the Complaint against defendant Sergeant Brian Swanty are 17 dismissed with prejudice. 18 IT IS FURTHER ORDERED that all claims alleged in the Complaint against 19 defendant Spouse Swanty and defendant Spouse Fellows are dismissed without 20 prejudice pursuant to Fed.R.Civ.P. 4(m). 21 22 23 IT IS FURTHER ORDERED that the remaining parties shall file an Amended Joint Case Management Report no later than May 26, 2009.3 IT IS FURTHER ORDERED that the Scheduling Conference shall be held 24 3 25 26 The parties are directed to review the Court’s order entered on March 3, 2009 (doc. #16). -5- 1 on Monday, June 8, 2009, at 11:30 a.m. in Courtroom 601. 2 3 DATED this 27th day of April, 2009. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 -6-
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