Clem v. Pinal Cnty.

• Decision Date: 10 May 2021
• Docket Number: No. 2 CA-CV 2020-0101,2 CA-CV 2020-0101
• Citation: 491 P.3d 1156,44 Arizona Cases Digest 4
• Court: Arizona Court of Appeals
• Parties: Jamie CLEM, Individually and on Behalf of the Beneficiaries of Skyler Clem, Deceased, Plaintiff/Appellant, v. PINAL COUNTY, a Political Subdivision of the State of Arizona; and Mark Lamb, in His Official Capacity as Sheriff of Pinal County, Arizona, Defendants/Appellees.

44 Arizona Cases Digest 4

491 P.3d 1156

Jamie CLEM, Individually and on Behalf of the Beneficiaries of Skyler Clem, Deceased, Plaintiff/Appellant,

v.PINAL COUNTY, a Political Subdivision of the State of Arizona; and Mark Lamb, in His Official Capacity as Sheriff of Pinal County, Arizona, Defendants/Appellees.

No. 2 CA-CV 2020-0101

Court of Appeals of Arizona, Division 2.

Filed May 10, 2021

Ahwatukee Legal Office P.C., Phoenix By, David L. Abney, Counsel for Plaintiff/Appellant

Jellison Law Offices PLLC, Carefree By, James M. Jellison, Counsel for Defendants/Appellees

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Espinosa and Vice Chief Judge Staring concurred.

ECKERSTROM, Judge:

¶1 Jamie Clem appeals from the trial court's entry of summary judgment in favor of Pinal County and Pinal County Sheriff Lamb.¹ Specifically, Clem argues the court erred in concluding that principles of res judicata and issue preclusion required it to grant summary judgment. For the reasons discussed below, we affirm the entry of summary judgment in part, we reverse in part, and we remand the case for further proceedings as explained below.

Factual and Procedural Background

¶2 On appeal from a trial court's grant of summary judgment, we "consider the evidence and all reasonable inferences in the light most favorable to the non-moving party." Span v. Maricopa Cnty. Treasurer , 246 Ariz. 222, ¶ 9, 437 P.3d 881 (App. 2019). In April 2015, Skyler Clem, while incarcerated in the Pinal County Jail, became non-responsive and was later pronounced dead after resuscitative efforts proved unsuccessful. It was subsequently determined he died from morphine intoxication. A year later, his mother, Jamie Clem, filed suit in Pinal County Superior Court against Pinal County, then-Pinal County Sheriff Paul Babeau solely in his official capacity, and various unnamed defendants, asserting state-law claims of negligence and gross negligence.

¶3 The following year, Clem filed a second lawsuit in Pinal County Superior Court, naming as defendants a number of detention officers she alleged had been working at the jail during the hours Skyler was in custody. That suit named the officers solely in their individual capacities and asserted solely federal-law causes of action under 42 U.S.C. § 1983. The complaint alleged substantially the same facts as the complaint in the first lawsuit.

¶4 On July 25, 2017, Clem moved the trial court to consolidate the two cases. Before the court ruled on that motion, two of the officer defendants in the second case removed the case to federal court. The first case remained in state court.

¶5 After several months of litigation in the federal case, Clem amended her federal complaint, eventually naming only Officer Gomez, still solely in his individual capacity.² The district court granted Gomez's motion for summary judgment with prejudice, finding he was entitled to qualified immunity. Specifically, the district court found that although Gomez had intentionally chosen not to conduct a face-to-photo verification as required by the jail's policy, his conduct did not amount to deliberate indifference such that a constitutional violation had occurred.³ It further concluded the record provided "no evidence" Gomez's "conduct caused Skyler's injuries." In drawing these conclusions, the district court relied on the parties’ undisputed facts regarding the conditions of Skyler's incarceration and his death.

¶6 Shortly after the district court dismissed the federal case, the County and the Sheriff filed a motion for summary judgment in the first case, which had remained in state court. After a hearing, the superior court granted that motion, concluding the judgment against Clem in federal court required it to dismiss the case on grounds of res judicata and issue preclusion. Clem has appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

Res Judicata

¶7 "We review de novo the claim preclusive effect of a prior judgment." Howell v. Hodap , 221 Ariz. 543, ¶ 17, 212 P.3d 881 (App. 2009). Because the prior judgment was issued by a federal court, federal law determines whether that ruling precludes a later state court decision on the ground of res judicata. Id. ; see also W. Sys., Inc. v. Ulloa , 958 F.2d 864, 871 & n.11 (9th Cir. 1992). Specifically, in the absence of a controlling United States Supreme Court case, "we look to the controlling federal law in the circuit in which the federal judgment was entered." Howell , 221 Ariz. 543, ¶ 18, 212 P.3d 881.

¶8 Res judicata "bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action." Owens v. Kaiser Found. Health Plan, Inc. , 244 F.3d 708, 713 (9th Cir. 2001) (quoting W. Radio Servs. Co. v. Glickman , 123 F.3d 1189, 1192 (9th Cir. 1997) ). For res judicata to apply, the two actions must share "(1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties." Id. (emphasis added) (quoting W. Radio Servs. Co. , 123 F.3d at 1192 ). Clem contends, among other arguments, that the County and the Sheriff lack privity with Officer Gomez in his individual capacity, the only remaining defendant before the district court dismissed the federal case.⁴ We agree.

¶9 The parties have not identified a case from the Ninth Circuit that directly controls this issue, and we are not aware of one. However, other federal circuits have held that a government employee named solely in an individual capacity is not in privity with the government. See, e.g. , Harmon v. Dallas Cnty. , 927 F.3d 884, 891-92 (5th Cir. 2019) (no privity between governmental entity and government employee later sued in individual capacity); Conner v. Reinhard , 847 F.2d 384, 395 (7th Cir. 1988) ("courts do not generally consider official sued in personal capacity to be in privity with the government"); Headley v. Bacon , 828 F.2d 1272, 1274, 1278-79 (8th Cir. 1987) (no privity between city found liable in earlier action and city employees later named in their individual capacities).

¶10 We see no reason to depart from the conclusions reached by the above-cited federal courts. Pinal County and the Sheriff cite numerous cases finding privity between a principal and an agent. But those cases are distinguishable because they analyzed either private principal-agent relationships or relationships in which a government representative was not named in an individual capacity and thus the government shared the burden of potential liability. See, e.g. , In re Schimmels , 127 F.3d 875, 883 (9th Cir. 1997) (finding privity between government and qui tam relators in False Claims Act litigation due in part to "unity of interest between the relators and the government who will share any and all recovery"); Spector v. El Ranco, Inc. , 263 F.2d 143, 145 (9th Cir. 1959) (finding privity between hotel and hotel employee). In such cases, the legal interests of the principal and the agent were substantially similar, justifying a finding of privity. See Schimmels , 127 F.3d at 881-83 (privity exists when interests of nonparty and party closely aligned).

¶11 By contrast, a government official named in an individual capacity must satisfy any judgment against him or her personally; the government is not accountable for its official's personal liability. See Kentucky v. Graham , 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ("award of damages against an official in [a] personal capacity can be executed only against the official's personal assets"). Thus, fundamentally, a government official named in an individual capacity does not represent the interests of the government and should not be considered its legal privy.

¶12 Furthermore, when a plaintiff sues a governmental officer solely in an individual capacity, that officer may assert immunities and defenses not available to the government. See Pearson v. Callahan , 555 U.S. 223, 237, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ("Qualified immunity is ‘an immunity from suit rather than a mere defense to liability.’ " (quoting Mitchell v. Forsyth , 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) )); Graham , 473 U.S. at 165-67, 105 S.Ct. 3099 (qualified immunity unavailable in official-capacity actions, which represent alternative method of pleading against governmental entity); Harmon , 927 F.3d at 891 (no privity between government and government employee sued in individual capacity because defenses differ). Here, Officer Gomez was entitled to assert qualified immunity for his actions, a defense not available to the governmental entities. See Harlow v. Fitzgerald , 457 U.S. 800, 813-14, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (explaining "qualified immunity" for public officers as expedient means to balance various burdens of litigation with need for viable "avenue for vindication of constitutional guarantees").

¶13 The County and the Sheriff nonetheless assert that the claims against them should be barred by res judicata because they are based on a theory of vicarious liability.⁵ Both the Ninth Circuit and Arizona courts follow the Restatement (Second) of Judgments when analyzing whether a vicarious liability claim is barred by res judicata. See M.J. ex rel. Beebe v. United States , 721 F.3d 1079, 1083 n.4 (9th Cir. 2013) (incorporating Tenth Circuit's recitation of Restatement (Second) of Judgments § 51 in vicarious liability context); Schimmels , 127 F.3d at 882 (citing Restatement (Second) of Judgments § 37 in privity analysis); Banner Univ. Med. Ctr. Tucson Campus, LLC v. Gordon , 249 Ariz. 132, ¶ 13, 467 P.3d 257 (App. 2020) (citing Restatement for proposition that "claim preclusion does not apply to a vicarious claim when, as here, the judgment in the first claim was based on a defense personal to the defendant"). Under the Restatement, "[i]f two persons have a relationship such that one of them is vicariously responsible for the conduct of the other," judgment in the...