Nees v. City of Phoenix
| Decision Date | 28 December 2022 |
| Docket Number | CV-21-01134-PHX-GMS |
| Parties | Brandee Nees, Plaintiff, v. City of Phoenix, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Pending before the Court is the City of Phoenix, Jeri Williams, John Ferragamo, and Jeff Cooke's (“Defendants”) Motion to Dismiss (Doc. 8.) For the reasons below Defendants' Motion is granted in part and denied in part.[1]
The Court construes all factual allegations in the Complaint as true. (Doc. 1-3.) At 10:19 PM on May 21, 2020, Ryan Whitaker and Plaintiff were playing a video game and listening to music in the apartment they shared. (Doc. 1-3 at 5.) Their upstairs neighbor called 911 to make a noise complaint. When the neighbor thought that police did not respond quickly enough, the neighbor again called 911, this time saying that the altercation on the floor below was “physical.” The 911 call was raised to high priority.
Defendants Cooke and Ferragamo (“the Officer Defendants”) officers with the Phoenix Police Department, arrived on scene and knocked on the apartment door. (Doc. 1-3 at 6.) Because neither officer was standing in front of the door, Mr. Whitaker could not see the officers through the peephole of his apartment. Based on the time of day and lack of visibility, Mr. Whitaker was concerned that there might be danger. Because of these concerns, Mr. Whitaker retrieved his handgun before opening the door. His handgun was by his side. Mr. Whitaker opened the door and, upon realizing that the two Defendants were police officers, he pointed his handgun to the ground, put that hand behind his back, and began to lower to his knees as a sign of submission. Defendant Cooke then fired three shots, two of which hit Mr. Whitaker in the back and abdomen. (Doc. 1-3 at 7.) The third entered the wall near where Plaintiff was standing.
While Mr. Whitaker lay fatally injured, Defendant Ferragamo started asking Plaintiff questions. Defendant Ferragamo did not allow Plaintiff to be near Mr. Whitaker as he suffered. Plaintiff was then removed from the apartment, and Mr. Whitaker died due to his injuries. (Doc. 1-3 at 8.) Plaintiff filed this lawsuit against the City of Phoenix, the Chief of Police, and the Officer Defendants, alleging violations of the Fourteenth Amendment, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and negligent hiring, training, and supervision. (Doc. 1-3.)
Defendants request that Plaintiff's Complaint be dismissed for failure to state a claim. Plaintiff contests dismissal but requests leave to amend if dismissal is granted. Because the Court grants Defendants' Motion in part, it will also consider Plaintiff's request for leave to amend.
To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When analyzing a complaint for failure to state a claim, “allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). Legal conclusions couched as factual allegations are not given a presumption of truthfulness, however, and “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
Plaintiff alleges that Defendants violated her substantive due process rights by firing into her apartment and striking the wall beside her. (Doc. 1-3 at 7); (Doc. 20 at 5.) “The Fourteenth Amendment's Due Process Clause extends only to those governmental actions that deprive one of a life, liberty, or property interest of constitutional magnitude.” Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 370 (9th Cir. 1998). Excessive use of force claims are usually considered under the Fourth Amendment; however, when a plaintiff has been neither arrested nor seized, the proper analysis is under substantive due process. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 843-44 (1998). To prevail on a substantive due process claim in this context, “Plaintiff[] must show that an officer's conduct ‘shocks the conscience.'” Nicholson v. City of Los Angeles, 935 F.3d 685, 692 (9th Cir. 2019) (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)).
The Officer Defendants, however, allege that they are entitled to qualified immunity on Plaintiff's due process claim. Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation,” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), and should be resolved “at the earliest possible stage of the litigation.” Saucier v. Katz, 533 U.S. 194, 200-01 (2001). To do so, courts engage in a two-prong inquiry. First, viewing the facts in the light most favorable to the plaintiff, the court determines whether the officers' conduct violated a federal right. Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014) (per curiam); Saucier, 533 U.S. at 201. Second, the court determines whether the right was “clearly established” at the time the violation occurred. Tolan, 134 S.Ct. at 1866. The Court may engage the two prongs of the qualified immunity test in either order. Pearson v. Callahan, 555 U.S. 223, 236 (2009). Here, because Plaintiff has failed to establish that her rights were clearly established, the Court considers only the second element.
Plaintiff fails to establish that any liberty interest was violated by the Officer Defendants' conduct. Plaintiff expressly disclaims any argument that her liberty interest is premised on a familial relationship, (Doc. 20 at 5), she does not allege that she was harmed by the stray bullet, and she does not allege that the stray bullet amounted to a “seizure” and thus infringed her Fourth Amendment rights. (Doc. 1-3 at 8.) Plaintiff's lone cited case, Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir. 1986), held that the plaintiff had properly alleged a Fourth Amendment violation because police had fired into the trailer where she was present at the time. But Plaintiff does not allege a Fourth Amendment violation. The Court could find no case in the Ninth Circuit and Plaintiff cites none where a court held that a bystander almost being shot implicates a liberty interest,[2] let alone one that amounts to conduct that “shocks the conscience” as required by substantive due process. Harmon v. City of Arlington, 478 F.Supp.3d 561, 571 (N.D. Tex. 2020) (“there is no constitutional right to be free from witnessing . . . police action.”); cf Rodriguez v. City of Fresno, 819 F.Supp.2d 937, 950 (E.D. Cal. 2011) (granting summary judgment and holding that in bystander cases in which there has been no seizure, a defendant's conduct must be measured in relation to the plaintiff, not the intended target). Plaintiff has failed to establish that her rights were clearly established, and the Officer Defendants are immune from liability.
Arizona law does not allow recovery for negligence if liability is based on an intentional act. Ryan v. Napier, 245 Ariz. 54, 60 (2018). A negligence claim, therefore, must sound in “conduct that is independent of the intentional use of force.” Id. at 62. Plaintiff's negligence claim is premised on the Officer Defendants' “discharging their firearm in the direction of a[n] innocent bystander” and “using excessive force and mortally wounding an individual in [front] of his or her significant other.” (Doc. 1-3 at 10.) This claim is clearly barred by Ryan: “[I]f a defendant acts with the intent to cause a harmful or offensive touching (battery), that same act cannot constitute negligence.” Ryan, 245 Ariz. at 60. Defendants' Motion is granted on this ground.
“To state a negligent infliction of emotional distress claim arising from witnessing another person's injury or death, a plaintiff must establish that she was within the ‘zone of danger,' and ‘must prove physical injury resulting from the shock of witnessing injury to a closely related person.'” State FarmMut. Auto. Ins. Co. v. Connolly ex rel. Connolly, 212 Ariz. 417, 420 (Ct. App. 2006) (quoting Duke v. Cochise Cnty., 189 Ariz. 35, 38 (Ct. App. 1996)). Arizona courts have not yet decided whether an unmarried significant other constitutes a “closely related person.” “Where the state's highest court has not decided an issue, the task of the federal courts is to predict how the state high court would resolve it.” Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 939 (9th Cir. 2001). “‘[A]bsent controlling authority, federal courts look to existing state law' but refrain from ‘predicting potential changes' in that law.” Barrett-Jackson Auction Co. v. Mountain Sports Int'l Inc., No. CV-20-00892-PHX-SRB, 2020 WL 9349176, at *3 (D. Ariz. Sept. 9, 2020) (quoting Ticknor, 265 F.3d at 939).
The Arizona courts have provided some guidance on what courts should consider when deciding who constitutes a “closely related person.” Who may recover for NIED depends “entirely on policy considerations.” Hislop v. Salt River Project Agr. Imp. & Power Dist., 197 Ariz. 553, 556-57 (Ct. App. 2000). One such policy consideration “is Arizona's strong policy interest ‘in fully compensating injured plaintiffs to make them whole.'” Id. at 557 (quoting Bryant v. Silverman, 146 Ariz. 41, 47 (1985)). Another is the recognition that many relationships are valued in our society, ...
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