Braillard v. Maricopa County

• Decision Date: 27 May 2010
• Docket Number: No. 2 CA-CV 2009-0059.,2 CA-CV 2009-0059.
• Citation: 232 P.3d 1263,224 Ariz. 481
• Parties: Jennifer BRAILLARD, personal representative of the Estate of Deborah Ann Braillard, deceased; Jennifer Braillard, surviving daughter of Deborah Ann Braillard, Plaintiff/Appellant/Cross-Appellee,v.MARICOPA COUNTY; Maricopa County Sheriff's Office; Joseph M. Arpaio and Ava Arpaio, husband and wife; Cincy Rodriguez; Randal S. Harenberg and Carlene Harenberg, husband and wife; Diane Galaviz; Karyn Kleinschmidt, nka Karyn Schwartz; Stephanie Leppert; Sandra M. Garfias; and Lucy F. Akpan, Defendants/Appellees/Cross-Appellants.
• Court: Arizona Court of Appeals

224 Ariz. 481

232 P.3d 1263

Jennifer BRAILLARD, personal representative of the Estate of Deborah Ann Braillard, deceased; Jennifer Braillard, surviving daughter of Deborah Ann Braillard, Plaintiff/Appellant/Cross-Appellee,v.MARICOPA COUNTY; Maricopa County Sheriff's Office; Joseph M. Arpaio and Ava Arpaio, husband and wife; Cincy Rodriguez; Randal S. Harenberg and Carlene Harenberg, husband and wife; Diane Galaviz; Karyn Kleinschmidt, nka Karyn Schwartz; Stephanie Leppert; Sandra M. Garfias; and Lucy F. Akpan, Defendants/Appellees/Cross-Appellants.

No. 2 CA-CV 2009-0059.

Court of Appeals of Arizona,

Division 2, Department B.

May 27, 2010.

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Stinson Morrison Hecker LLP By Michael C. Manning, Leslie E. O'Hara, and John T. White, Phoenix, Attorneys for Plaintiff/Appellant/Cross-Appellee.

Wilenchik & Bartness, P.C. by Dennis I. Wilenchik and M. Rob Somers, Phoenix, Attorneys for Defendants/Appellees/Cross-Appellants Arpaio, Harenberg, Galaviz, Schwartz, Leppert, Garfias, and Akpan.

Zwillinger Greek Zwillinger & Knecht PC by Scott H. Zwillinger and Sara R. Witthoft, Phoenix, Attorneys for Defendants/Appellees/Cross-Appellants Maricopa County and Rodriguez.

OPINION

VÁSQUEZ, Judge.

¶ 1 In this wrongful death and survival action brought under state law and 42 U.S.C. § 1983, Jennifer Braillard (Braillard) sued Maricopa County (the County), Maricopa County Sheriff Joseph Arpaio, the Maricopa County Sheriff's Office (MCSO), and seven individual MCSO and County employees, for damages arising from the death of her mother, Deborah Braillard (Deborah).

¶ 2 On appeal, Braillard argues the trial court erred in granting defendants' motions for summary judgment on her substantive claims and on her claims for punitive damages and damages for Deborah's pain and suffering pursuant to § 1983. On cross-appeal, the defendants argue the court erred in denying their motion to dismiss MCSO as a nonjural entity; denying their motion for summary judgment on Braillard's standing to bring a wrongful death action under § 1983; denying their motion for summary judgment on Braillard's state-law negligence and gross negligence claims; and in its rulings on two discovery-related disputes.

¶ 3 For the reasons stated below, we reverse the trial court's grants of summary judgment in favor of all defendants on Braillard's § 1983 survival claims and her associated claims for damages and on her state-law claims with respect to defendant Cincy Rodriguez. We also reverse the court's denial of summary judgment with respect to Braillard's standing to file a wrongful death claim pursuant to § 1983 and its denial of the defendants' motion to dismiss MCSO as a nonjural entity. However, we affirm the court's discovery rulings and its denial of defendants' motion for summary judgment on Braillard's state claims.

Factual and Procedural Background

¶ 4 We view the facts in the light most favorable to Braillard, the party against whom summary judgment was granted. See Corbett v. ManorCare of Am., Inc., 213 Ariz. 618, ¶ 2, 146 P.3d 1027, 1030-31 (App. 2006). On the night of January 1, 2005, Deborah was arrested on suspicion of drug possession and taken to the Fourth Avenue county jail in Phoenix. At the jail, defendant Cincy Rodriguez, a nurse with Maricopa County Correctional Health Services (CHS), conducted Deborah's medical screening interview. The screening, which lasted fifty-nine seconds, failed to ascertain that Deborah was an insulin-dependent diabetic. She then was transferred to K-Dorm at Estrella Jail the next day with no indication that she was in need of regular insulin injections.

¶ 5 On January 3, other inmates observed Deborah “moaning and groaning” and vomiting. By the evening of January 4, “[s]he was basically unconscious.... She couldn't speak. She couldn't eat.... She defecated on herself several times.” Inmates who asked the detention officers on duty to get help for Deborah were told: “There's nothing we can do about it. You just have to deal with it. This is jail. Get over it.”

¶ 6 At 3:00 p.m. on January 4, defendants Karyn Schwartz and Randal Harenberg, MCSO detention officers, started their shift in K-Dorm. Schwartz saw Deborah sitting at a table and believed she was sitting there because she was not feeling well. Other inmates apparently informed Harenberg that Deborah was suffering from drug withdrawal, and two of them helped walk her to her bunk. Harenberg was “concerned ... to the point where every time [he] went on a security walk ... [he] stopped by her bunk and checked on her.” At 3:25 p.m., Harenberg noted in the K-Dorm logbook that Deborah was “complaining of being sick [and] can't breathe” and that he had called CHS. However, none of the CHS staff on duty acknowledged having received such a call, and no one from CHS came to K-Dorm to check on Deborah. At 6:30 p.m., she was too sick to stand in line for her dinner, and Harenberg allowed another inmate to bring her a meal.

¶ 7 At 8:17 p.m., Deborah's friend Michael Amsberry attempted to visit her at the jail but was told she was too ill to come to the visitation area. At 9:42 p.m., another friend, Debbie Fouts, called MCSO, concerned that Deborah had not received medication while in jail. The MCSO officer who received the call, Brenda O'Neil, sent a facsimile to inform Estrella Jail's medical clinic, but the facsimile apparently was neither picked up nor read by anyone there.

¶ 8 The next shift started at 11:00 p.m. During this shift, only one detention officer was on duty in K-Dorm, defendant Sandra Garfias. Another officer, defendant Diane Galaviz, was assigned to escort duty and conducted a security walk during the shift. Garfias heard Deborah vomiting more than twice, and at 2:45 a.m. on January 5, moved Deborah from the dormitory to the day room because her “groaning [and] yelling” were keeping the other inmates awake. Deborah continued groaning and calling out, “Why me?” and “Help me” until around 5:00 a.m. Defendants Lucy Akpan and Stephanie Leppert took over from Garfias at 7:00 a.m. Deborah was moved back to her bunk, where she vomited again. Akpan observed that she appeared weak and “very sick.”

¶ 9 That morning, Braillard telephoned CHS risk manager Dennis Flynn and expressed concern that Deborah might not have been receiving appropriate treatment for her diabetes while she was in jail. Flynn contacted a nurse at the Estrella Jail medical clinic, who had Deborah brought to the clinic. She was given insulin and oxygen and transferred by ambulance to Maricopa County Medical Center, where she died eighteen days later from diabetic ketoacidosis.

¶ 10 Braillard brought this action, in her individual capacity and on behalf of Deborah's estate, against Sheriff Arpaio, MCSO, and detention officers Karyn Schwartz, Randal Harenberg, Sandra Garfias, Diane Galaviz, Lucy Akpan, and Stephanie Leppert (collectively, the MCSO defendants), and also against Maricopa County and CHS nurse Cincy Rodriguez (collectively, the County defendants).¹ The trial court granted the defendants' motions for summary judgment with respect to Braillard's § 1983 claims and entered an order of final judgment pursuant to Rule 54(b), Ariz. R. Civ. P. Braillard timely filed a notice of appeal, and the County defendants and MCSO defendants filed separate and timely notices of cross-appeal.

Discussion

Capacity to Sue and be Sued

¶ 11 Before addressing the trial court's grant of the defendants' motion for summary judgment on Braillard's § 1983 claims, we consider two cross-appeal arguments affecting Braillard's standing to sue and MCSO's capacity to be sued with respect to those claims. These are legal issues we review de novo. See Aegis of Ariz., L.L.C. v. Town of Marana, 206 Ariz. 557, ¶ 16, 81 P.3d 1016, 1021 (App.2003).

¶ 12 First, the MCSO defendants argue the trial court erred in denying their motion to dismiss both the § 1983 claims and state tort claims against MCSO on the ground that it is a nonjural entity.² Governmental entities have no inherent power and possess only those powers and duties delegated to them by their enabling statutes. Schwartz v. Superior Court, 186 Ariz. 617, 619, 925 P.2d 1068, 1070 (App.1996). Thus, a governmental entity may be sued only if the legislature has so provided. See Kimball v. Shofstall, 17 Ariz.App. 11, 13, 494 P.2d 1357, 1359 (1972) (holding State Board of Education may not be sued in absence of authorizing statute); see also 56 Am.Jur.2d Municipal Corporations, Counties, Other Political Subdivisions § 787 (2010) ( “[D]epartments and subordinate entities of ... counties ... that are not separate legal entities or bodies do not have the capacity to sue or be sued in the absence of specific statutory authority.”). Although A.R.S. § 11-201(A)(1) provides that counties have the power to sue and be sued through their boards of supervisors, no Arizona statute confers such power on MCSO as a separate legal entity.

¶ 13 Braillard nevertheless asserts that in prior cases MCSO has “admitted in court proceedings that it is a separate entity from the County.” However, “there is no doctrine of jural status by estoppel, at least without detrimental reliance in the case at hand.” Payne v. Arpaio, 2009 WL 3756679, 4 (D.Ariz.2009). Whether MCSO is a nonjural entity is apparently an issue of first impression in our state courts; however, federal courts in Arizona have addressed this issue on numerous occasions. And, although their decisions have been divided, most-including a number of unpublished orders-have found MCSO to be a nonjural entity for the reasons stated above. See Lovejoy v. Arpaio, 2010 WL 466010, 16 (D.Ariz.2010); Payne, 2009 WL 3756679, at 4; Flores v. Maricopa County, 2009 WL 2169159, 3 (D.Ariz.2009); Wilson v. Maricopa County, 463 F.Supp.2d 987, 1001 (D.Ariz.2006) (denying reconsideration of prior order dismissing MCSO as nonjural entity). And those decisions declining to dismiss MCSO...