Norwood v. Ariz. Dep't of Child Safety
| Decision Date | 15 July 2020 |
| Docket Number | No. CV-18-04956-PHX-DWL,CV-18-04956-PHX-DWL |
| Citation | 472 F.Supp.3d 531 |
| Parties | Sylvia NORWOOD, Plaintiff, v. ARIZONA DEPARTMENT OF CHILD SAFETY, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
James Michael Green, Quarracy Lamar Smith, Smith & Green Attorneys at Law PC, Phoenix, AZ, for Plaintiff.
Deborah L. Garner, Michael Gregory Gaughan, Office of the Attorney General, Phoenix, AZ, for Defendants Child, Gregory McKay.
James M. Jellison, Jellison Law Offices PLLC, Carefree, AZ, for Defendants City of Goodyear, Regan McCarthy.
This lawsuit arises from the tragic death of S.C., a seven-year-old girl, in February 2017. (Doc. 13 ¶ 18.) S.C. died while living with her biological father, Germayne Cunningham, and her stepmother, Lisa Cunningham. (Id. at 2 & ¶ 28.) The plaintiff is Sylvia Norwood, S.C.’s biological mother, who is suing in her individual capacity and as the personal representative of S.C.’s estate. (Id. ¶¶ 1-3.) Norwood alleges that various public entities and state actors—Goodyear Police Officer Regan McCarthy, the City of Goodyear (the "City"), the Arizona Department of Child Safety ("DCS"), and DCS Director Gregory McKay (collectively, "Defendants")—knew the Cunninghams were abusing S.C. in the months preceding her death but failed to intervene. (Id. ¶¶ 45, 55, 58.) Norwood further alleges that Defendants’ inaction was due in part to their deference to Mr. Cunningham's status as a member of the Phoenix Police Department. (Id. ¶ 28.)
Now pending before the Court are motions to dismiss by Officer McCarthy and the City (collectively, the "City Defendants") (Doc. 26) and Director McKay and DCS (collectively, the ) (Doc. 27). For the following reasons, both motions will be granted and this action will be terminated.
The facts alleged in Norwood's first amended complaint ("FAC") are as follows.
In March 2016, an unidentified DCS employee was "called out" to the Cunninghams’ residence in Goodyear and "ruled there were no signs of neglect." (Doc. 13 ¶ 20.)
In October 2016, an unidentified DCS employee was again "called out" to the Cunninghams’ residence and "again ruled there were no signs of neglect." (Id. )
On December 21, 2016, Officer McCarthy and other unspecified Goodyear police officers visited the Cunninghams’ residence, in response to a request by Norwood, to investigate allegations that S.C. was being neglected and abused. (Id. ¶ 12.) Upon arriving, Officer McCarthy found S.C. seated in a lawn chair in the Cunninghams’ laundry room. (Id. ¶¶ 12, 13, 23.) S.C. wore a large sweatshirt with the arms tied around the back of the chair, which restrained her and restricted her movement. (Id. ) Mr. Cunningham, a detective in the Phoenix Police Department, explained to Officer McCarthy that S.C. was schizophrenic and engaging in self-harm and "this [method of restraint] was the only way they knew to prevent it." (Id. ¶¶ 13, 28.) Although Mr. Cunningham "denied any abuse," Officer McCarthy noted a lock on the exterior door of the laundry room and various cuts, bruises, and wounds
on S.C. (Id. ¶¶ 24-26.)
Officer McCarthy did not arrest the Cunninghams at the conclusion of this visit or remove S.C. from the Cunninghams’ custody. (Id. ¶ 12, 27.) Instead, Officer McCarthy reported what he saw to DCS. (Id. ¶ 12.) That same day, DCS opened a case. (Id. ¶ 20.) However, DCS "did not perform any investigation thereafter or make any attempt to determine if, in fact, S.C. was in an abusive and neglectful home." (Id. )
The FAC alleges that the absence of further action "emboldened" the Cunninghams, who "thereby accelerated their abuse" of S.C. (Id. ¶ 29.) The FAC also alleges that "[a]ll Defendants gave [Mr.] Cunningham unreasonable and unwarranted benefit of the doubt and exceptions presumably because he was a Phoenix Police Detective." (Id. ¶ 28.)
On February 12, 2017, S.C. died. (Id. ¶ 18.) The cause of death was "sepsis from an open wound
on her foot." (Id. ) The Cunninghams have now been charged with crimes related to S.C.’s death. (Id. ¶ 43.)
On December 12, 2017, the State Defendants released a public report concerning S.C.’s death. (Id. ¶¶ 33, 35.)
On December 31, 2018, Norwood initiated this action. (Doc. 1.)
On April 19, 2019, Norwood filed the FAC. (Doc. 13.)1
On April 25, 2019, the parties informed the Court that a sealing order issued by the presiding judge in the ongoing state-court criminal case against the Cunninghams made them "unable to receive or release any of the records needed for the litigation of the matter pending before this court"—specifically, Goodyear police records and DCS records—which, in turn, made them unable to comply with initial mandatory discovery requirements, respond to the complaint, or amend the complaint. (Doc. 17 at 1-3.)
On April 26, 2019, the Court granted a 60-day stay. (Doc. 18.)
On June 24, 2019, the parties filed a second joint certification requesting another 60-day stay. (Doc. 19.) Later that day, the Court granted the stay. (Doc. 20.)
On August 20, 2019, the parties jointly requested an additional stay. (Doc. 21.)
On August 21, 2019, the Court stayed further proceedings until October 30, 2019. (Doc. 22.)
On October 30, 2019, the parties informed the Court that the records at issue had been unsealed and requested a 120-day extension of existing deadlines due to the "voluminous" nature of the unsealed records. (Doc. 23 at 2.) Norwood stated that she anticipated filing a second amended complaint based on the information in the unsealed records. (Id. )
On November 4, 2019, the Court granted in part and denied in part the parties’ joint motion. (Doc. 24.) The Court extended the deadline for Defendants to file a responsive pleading to the FAC to January 28, 2020. (Id. at 1.) The Court also informed Norwood that filing a second amended complaint would require Defendants’ consent or leave of Court and set a March 12, 2020 deadline for Norwood to file a second amended complaint with consent or a motion seeking leave to do so. (Id. at 1-2.)
On January 28, 2020, the City Defendants and State Defendants filed separate motions to dismiss. (Docs. 26, 27.)
On June 15, 2020, following extensions related to the delayed disclosure of unsealed documents, Norwood filed responses to both motions. (Docs. 41, 42.)
On June 22, 2020, the City Defendants filed a reply. (Doc. 43.)
On June 23, 2020, the State Defendants filed a reply. (Doc. 44.)
The FAC asserts three causes of action. Count One is a § 1983 claim against Director McKay and DCS premised on alleged violations of S.C.’s rights under the Due Process Clause of the Fourteenth Amendment. (Doc. 13 ¶ 40.) Count Two is a § 1983 claim against Officer McCarthy and the City premised on Monell liability—specifically, that Officer McCarthy violated S.C.’s rights under the Due Process Clause of the Fourteenth Amendment, the City "employed policies, practices and customs, or affirmatively chose to have no policy regarding adequately investigating and/or determining clear and obvious signs of criminal child abuse and neglect," and also "failed to adequately train and supervise its employees ... regarding said policy(ies)," and these failures were the "moving force" behind Officer McCarthy's constitutional violation. (Id. ¶¶ 47-55.) The precise nature of Count Three is unclear. It is labeled " 42 U.S.C. § 1983 Wrongful Death ... A.R.S. 12-611." (Id. at 14.) It seeks to hold all Defendants liable for the "aforementioned acts [which] were wrongful and/or negligent." (Id. ¶¶ 57-58.)
The City Defendants argue that (1) Count Two must be dismissed because the FAC fails to include any plausible, non-conclusory allegations of a municipal policy, custom, or practice; (2) alternatively, Count Two is foreclosed by DeShaney v. Winnebago County Dept. of Soc. Servs. , 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), because Norwood is seeking to impose liability based on their alleged failure to protect S.C. from harm by a private actor;2 and (3) Count Three, which the City Defendants construe as a "state law" claim, must be dismissed because Norwood failed to comply with Arizona's notice of claim statute. (Doc. 26.) Meanwhile, the State Defendants argue that (1) DCS and Director McKay are not proper parties (because the former is a non-jural entity and the latter is being sued in his official capacity), Norwood is effectively attempting to sue the State of Arizona, and the State is not a proper defendant under § 1983 ; (2) alternatively, Counts One and Three fail on the merits under DeShaney ; and (3) Norwood shouldn't be granted leave to assert state-law claims because she failed to comply with Arizona's notice-of-claims statute and because such claims would be time-barred. (Doc. 27.)
To survive a motion to dismiss under Rule 12(b)(6), "a party must allege ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’ " In re Fitness Holdings Int'l, Inc. , 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ). "[A]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Id. at 1144-45 (citation omitted). However, the court need not accept legal conclusions couched as factual allegations. Iqbal , 556 U.S. at 679-80, 129 S.Ct. 1937. The court also may dismiss due to "a lack of a cognizable legal theory." Mollett v. Netflix, Inc. , 795 F.3d 1062, 1065 (9th Cir. 2015) (citation omitted).
As an initial matter, the City Defendants...
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