asu motion to dismiss

7/25/2019 ASU motion to dismiss

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Cohen Kennedy Dowd & Quigley, P.C.The Camelback Esplanade I2425 East Camelback Road Suite 1100

Phoenix, Arizona 85016Telephone 6022528400 Facsimile 6022525339

Daniel G. Dowd (012115) Email: [email protected] van Doren (019379) Email: [email protected] Clemency (029854) Email: [email protected]

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Charles Cornfield, an individual, Benjamin Robert

Flynn, an individual, Bernard Linser, anindividual, Patrick Murphy, an individual, William. OHayer, an individual, Matthew V. Parker, an

individual, Matthew Mansfield, an individual, andAlexander J. Goodwin, an individual,

Plaintiffs,

vs.

ohn Pickens, an individual acting under the colorof law, Allen Clark, an individual acting under the

color of law, William Orr, an individual actingunder the color of law, Pamela Osborne, anindividual acting under the color of law, Markanda, an individual acting under the color of law,

Morgan Olsen, an individual acting under thecolor of law, Kevin Salcido, an individual actingunder the color of law, Michael Thompson, anindividual acting under the color of law, JamesHardina, an individual acting under the color oflaw, Bryan Epps, an individual acting under thecolor of law, Louis Scichilone, an individualacting under the color of law, and the Arizona

Board of Regents,

Defendants.

Case No: 2:16-cv-00924-PHX-ROS

MOTION TO DISMISS SECOND

AMENDED COMPLAINT

(Assigned to the Honorable Roslyn O.Silver)

Oral Argument Requested

Case 2:16-cv-00924-ROS Document 12 Filed 05/09/16 Page 1 of 20


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dismissal on the following grounds:

The allegations in the SAC are impossibly vague, prolix, and fail to provide fair

notice of the factual basis for the claims asserted by each of the Plaintiffs against

each of the Defendants.

Sovereign immunity bars Plaintiffs from asserting Count I (violation of 42 U.S.C.

1983) and Count V (violation of ADEA) against ABOR, as well as the Individual

Defendants in their official capacities.

Qualified immunity bars Count I (violation of 42 U.S.C. 1983) against the

Individual Defendants in their individual capacities. The factual allegations in the SAC are insufficient to support the claims asserted.

No cause of action based on falsification of records exists.

Plaintiffs are barred from pursuing the state law claims in Count III (intentional

infliction of emotional distress), Count IV (falsification of records), and Count V

(ACRA) because Plaintiffs did not timely file a notice of claim as required to pursue

any state law claims against public entities and officials.

Punitive damages are not available against public employees on state law claims.

For all of these reasons, the SAC (Plaintiffs third attempt) should be dismissed with

prejudice.

II. THE SECOND AMENDED COMPLAINT FAILS TO STATE A CLAIM.

A Rule 12(b)(6) dismissal for failure to state a claim can be based on either (1) the

lack of a cognizable legal theory or (2) insufficient facts to support a cognizable legal claim.

Zabriskie v. Fed. Nat. Mortg. Assn, 109 F. Supp. 3d 1178, 1181 (D. Ariz. 2014). To survive a

motion to dismiss, a complaint must contain sufficient, non-conclusory factual allegations to

plausibly suggest a claim entitling the plaintiff to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Rule 12(b)(6) serves the important role of eliminating causes of action that are

flawed in their legal or factual premises and sparing litigants the burdens of unnecessary

pretrial and trial activity. Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d

1157, 1160 (Fed. Cir. 1993). The SAC should not get out of the starting gate.



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A. Plaintiffs Second Amended Complaint Violates Fed. R. Civ. P. 8(a).

Fed. R. Civ. P. 8(a) requires a complaint to contain a short, plain statement of the

claims showing that the pleader is entitled to relief. The statement should be plain

because the principal function of pleadings under the Federal Rules is to give the adverse

party fair notice of the claim asserted so as to enable him to answer and prepare for trial.

Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The statement should be short because

unnecessary prolixity in a pleading places an unjustified burden on the court and the party

who must respond to it because they are forced to select the relevant material from a mass

of verbiage. Id.(quoting5 C. Wright & A. Miller, Federal Practice and Procedure 1281 a365 (1969)). Federal courts have consistently made clear that violation of this rule is grounds

for dismissal. See, e.g., Hatch v. Reliance Ins. Co., 758 F.2d 409, 415 (9th Cir. 1985) (upholding

Rule 8(a) dismissal of a complaint that exceeded 70 pages in length, [and was] confusing

and conclusory); Donahoe v. Arpaio, 869 F. Supp. 2d 1020, 1076 (D. Ariz. 2012) (A

complaint that is argumentative, prolix, replete with redundancy ... [and] consists largely of

immaterial background information is subject to dismissal.) (quoting McHenry v. Renne, 84

F.3d 1172, 1177 (9th Cir. 1996)); Jones v. Mohave Cnty., 2012 WL 79882, at *2 (D. Ariz. Jan

11, 2012) ([B]ecause the Complaint does not contain a short and plain statement of each

claim showing that Plaintiff is entitled to relief and lacks the simple, concise and direct

allegations required by Rule 8, Plaintiffs Complaint must be dismissed.).

Plaintiffs SAC is the antithesis of what Rule 8(a) requires. Answering it would

require Defendants to wade through over 200 paragraphs of vague, conclusory, redundant

inconsistent, unnecessary and often incoherent allegations without any specificity as to the

who, what, where or when of the alleged conduct that forms the basis for the claims

asserted. Multiple allegations in the SAC do not reference a specific plaintiff or defendant

are not complete sentences, and simply make generalized assertions of misconduct. A few

examples:

The amount of turnover in the department is unheard of.

Overtime was paid out to salaried employees when they worked extra hours atathletic and other events.



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Falsely documenting facts about officers or trainees performance.

Harassing employees, embarrassing employees.

Without any evidence of wrongdoing, Plaintiffs were subjected to mandatoryinterrogations with and some threatened with loss of employment.

[SAC, 30, 35, 53, 54, 121.] At least thirty-seven of the 160 paragraphs in the Facts

Common to All Claims section of the SAC are plagued with these amorphous, untethered

allegations. [SeeSAC, 26-43, 45-56, 121-22, 126, 147-49, 160.]

The SAC also repeatedly alleges wrongful conduct directed at a specific Plaintiff but

never identifies an actual Defendant as having engaged in that conduct. For example

paragraphs 74 and 80 allege that Plaintiff OHayer was directed to alter his reports anddenied access to his personnel and training records but never identifies the individual

giving the direction. Thirty-one of the alleged Facts contain this deficiency. [SeeSAC,

72-76, 84-92, 94, 99-105, 108, 110-12, 115-17, 121-22.]

Still other paragraphs allege that a Defendant engaged in wrongful conduct but do

not identify that a specific Plaintiff, or often any Plaintiff at all, was the target of that

conduct. For example, paragraph 143 alleges that Defendant Scichilone falsified

documents against an employee which resulted in a secret internal affairs file and he then

released this secret file which prevented an employee from future employment. The

allegation does not specify whether this employee is even a Plaintiff in this action. Thirty-

three paragraphs in the SAC suffer from this deficiency. [SeeSAC, 44, 118-20, 123-25

127-38, 141-44, 150-59.]

The Ninth Circuit in McHenry addressed a similarly incoherent pleading, in which

[d]espite all the pages, requiring a great deal of time for perusal, one cannot determine from

the complaint who is being sued, for what relief, and on what theory, with enough detail to

guide discovery. 84 F.3d at 1178. TheMcHenrycourt poignantly captured the danger of

allowing such a prolix, confusing complaint to survive dismissal:

As a practical matter, the judge and opposing counsel, in order to performtheir responsibilities, cannot use a complaint such as the one plaintiffs filed,and must prepare outlines to determine who is being sued for what.Defendants are then put at risk that their outline differs from the judges, thatplaintiffs will surprise them with something new at trial which they reasonably



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did not understand to be in the case at all, and that res judicata effects ofsettlement or judgment will be different from what they reasonably expected.The rights of the defendants to be free from costly and harassing litigation

must be considered.The judge wastes half a day in chambers preparing the short and plainstatement which Rule 8 obligated plaintiffs to submit. He then must managethe litigation without knowing what claims are made against whom. This leadsto discovery disputes and lengthy trials, prejudicing litigants in other case[s]who follow the rules, as well as defendants in the case in which the prolixpleading is filed.

Id. at 1179-80. Defendants are entitled to know and Plaintiffs are duty-bound to

coherently articulate the basis of the claims against them so that Defendants may fairly

defend themselves. The SAC deprives Defendants of their right to fair notice. As all of the

dangers identified by theMcHenrycourt are present here, the SAC should be dismissed.

B. Plaintiffs Cannot Assert a Section 1983 Claim Against ABOR or SeekDamages from Any Individual Defendant in an Official Capacity.

A Section 1983 claim may only be asserted against a person[acting] under color of

[state law]. 42 U.S.C. 1983 (emphasis added). It is well-settled that a state is not a

person under 1983. Will v. Mich. Dept of State Police, 109 S. Ct. 2304, 2312 (1989)

(holding that 1983 claim could not be pursued against an arm of the state). Arms of the

state and state officials acting in their official capacity are similarly excluded from the

definition of person under 1983. Id.(holding that Michigan Department of State Police

as an arm of the state, could not be liable under 1983); Kentucky v. Graham, 473 U.S. 159

165, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (holding that [o]fficial-capacity suits

represent only another way of pleading an action against an entity of which an officer is an

agent) (internal quotations omitted).3

3 Plaintiffs are wrong in contending that ABOR has waived its Eleventh Amendmenimmunity by receiving federal funds. [SAC, 20.] First, Plaintiffs misunderstand thedistinction between Eleventh Amendment immunity, which precludes suits against statesand state agencies in federal court, and sovereign immunity, which is a broader protectionagainst suit in any forum. SeeBeaulieu v. Vermont, 807 F.3d 478, 483 (2d Cir. 2015) ([T]thereare two types of sovereign immunity at issue here: (1) a particular species of sovereignimmunityEleventh Amendment immunity from suit in federal courtand (2) the statesbroader general sovereign immunity against all suits.). Eleventh Amendment immunity isinapplicable because Defendants removed this action to federal court. However, Plaintiff



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ABOR is an arm of the State of Arizona and, thus, is completely immune from

liability for claims brought under 1983, regardless of whether the claims seek damages or

injunctive relief. SeeAnsel Adams Publg Rights Trust v. PRS Media Partners, LLC, 502 F. Appx

659, 660 (9th Cir. 2012); Dickman v. Arizona Bd. of Regents, No. CV 08-1684-PHX-MHM

2008 WL 4693404, at *2 (D. Ariz. Oct. 22, 2008). To the extent that Plaintiffs have sued the

Individual Defendants in their official capacities, the Individual Defendants are also immune

from a money damage claim.4 SeeWill, 109 S. Ct. at 2312.

C. The Individual Defendants are Entitled to Qualified Immunity fromSuit Under 1983.

Plaintiffs 1983 claim against the Individual Defendants, if alleged in their individual

capacities, fails based on the doctrine of qualified immunity, which protects public

employees from suit unless the facts alleged demonstrate that the employees conduct

violated a clearly established constitutional right. See, e.g., Cmty. House, Inc. v. City of Boise,

have cited no authority (because none exists) stating that ABOR waived its broader

sovereign immunity for all purposes by accepting federal funds. A foundational premise ofthe federal system is that States, as sovereigns, are immune from suits for damages, save asthey elect to waive that defense. Coleman v. Court of Appeals of Maryland, 132 S. Ct. 13271333, 182 L. Ed. 2d 296 (2012). As an exception to this principle, Congress may abrogatethe States immunity from suit pursuant to its powers under 5 of the FourteenthAmendment. Id. Neither of the cases Plaintiffs cite in the SAC demonstrates either waiverby the State of Arizona or abrogation by Congress of sovereign immunity with respect to theclaims Plaintiffs assert. Monell v. Dept of Soc. Servs. of City of New York addressed whether locagovernmental units were persons for the purposes of a Section 1983 claim. 436 U.S. 658690 (1978) (Our analysis of the legislative history of the Civil Rights Act of 1871 compelsthe conclusion that Congress did intend municipalities and other local government units tobe included among those persons to whom 1983 applies.). In Phiffer v. Columbia River Corr

Inst., 384 F.3d 791, 792-93 (9th Cir. 2004), the Court addressed whether EleventhAmendment immunity was available for claims brought under the federal Rehabilitation andAmericans with Disabilities Acts).4 Given the vague allegations of the SAC, it is unclear in what capacity and for what

relief Plaintiffs 1983 claim against the Individual Defendants is asserted. If Plaintiffs arepermitted to amend any portion of their pleading and pursue a 1983 claim against theIndividual Defendants in their official capacities, prospective injunctive relief is the onlyrelief available against them under 1983. See Ex parte Young, 209 U.S. 123, 155-56 (1908)(holding that state officials sued in their official capacity may be enjoined from engaging inacts that violate the federal constitution). As a practical matter, this relief would only applyto the two Plaintiffs (Linser and Mansfield) still employed by ASU PD.



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Idaho, 623 F.3d 945, 967 (9th Cir. 2010) (noting that qualified immunity is an immunity

from suit rather than a mere defense to liability); Todd v. United States, 849 F.2d 365, 371 (9th

Cir. 1988) (holding that because defendants did not violate plaintiffs clearly established

First or Fifth Amendment rights, they were entitled to immunity from suit). Consideration

of the qualified immunity issue at the pleadings stage is appropriate because [t]he basic

thrust of the qualified-immunity doctrine is to free officials from the concerns of litigation,

including avoidance of disruptive discovery. Iqbal, 556 U.S. at 685 (quotingSiegert v. Gilley

500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)); accordBehrens v. Pelletier, 516

U.S. 299, 30708 (1996).Even taking all of the allegations in the SAC as true, Plaintiffs have not pleaded that

the Individual Defendants engaged in conduct violating Plaintiffs clearly established

constitutional rights. Rather, much of the alleged misconduct centers on the falsification of

records, which has no bearing on any Plaintiffs constitutional rights. Other vague

allegations of First Amendment, Second Amendment, due process and equal protection

violations lack even a modicum of the factual detail required to avoid the qualified immunity

bar. Accordingly, any individual-capacity 1983 claim fails.

D. Plaintiffs Fail to State a Claim Under 42 U.S.C. 1983.

Finally, Plaintiffs 1983 claim fails because the facts asserted in the SAC are

insufficient to state a claim. Section 1983 provides: Every person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured . 42 U.S.C. 1983. To state a claim, a plaintiff mus

allege facts demonstrating: (1) the violation of a right secured by the Constitution or laws of

the United States (2) committed by a person acting under the color of state law. SeeNaffe v

Frey, 789 F.3d 1030, 103536 (9th Cir. 2015).

A plaintiff must also plead sufficient facts to plausibly state that each Government-

official defendant, through the officials own individual actions, has violated the



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Constitution. Iqbal, 556 U.S. at 676. As other federal courts have recognized, complaints

relying on the civil rights statutes are insufficient unless they contain some specific

allegations of fact indicating a deprivation of rights instead of a litany of general conclusions

that shock but have no meaning. Barr v. Abrams, 810 F.2d 358, 36263 (2d Cir. 1987)

(affirming dismissal of 1983 claim that alleged defendant threatened witnesses, unlawfully

seized property, submitted false statements to courts, told persons that he had engaged in

fraud and sham, and illegally conspired with the Internal Revenue Service).

The SAC includes sweeping conclusions that Plaintiffs rights under the First

Amendment and Second Amendment, as well as their due process and equal protectionrights, were violated. [See, e.g., SAC 4245.] However, the pleading contains only naked

conclusions and is bereft of factual allegations sufficient to sustain a claim.

1. Plaintiffs Have Not Pleaded a First Amendment Retaliation Claim.

To recover under 1983 for retaliation, a plaintiff must prove that the employer

believed the plaintiff engaged in constitutionally protected activity, and that as a result, the

employer subjected the plaintiff to adverse action. SeeHeffernan v. City of Paterson, N.J., No

14-1280, 2016 WL 1627953, at *5 (U.S. Apr. 26, 2016) (holding that cause of action under

the First Amendment and 42 U.S.C. 1983 arises where employer engages in adverse

employment action out of a desire to prevent the employee from engaging in political

activity that the First Amendment protects). Plaintiffs have not alleged either that they

engaged in constitutionally protected activity, or that as a result of that activity, Defendants

took adverse employment action against them.

The SAC contains general allegations of investigations conducted (involving only

three Plaintiffs) relating to an internet blog called the Integrity Report. [SeeSAC 88, 98

120, 154.] However, the SAC does not allege facts sufficient to show that any Plaintiff either

spoke or was believed to have spoken as a citizen on a matter of public concern, or that

suppressing that speech was the motivation for any adverse employment action. Garcetti v

Ceballos, 547 U.S. 410, 418 (2006) (holding that in addressing constitutional protections given

to speech of public employees, courts must first determin[e] whether the employee spoke



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as a citizen on a matter of public concern); Heffernan, 2016 WL 1627953 at *5 (To win, the

employee must prove an improper employer motive.). In the absence of any allegation of

protectable speech, the employee has no First Amendment cause of action based on his or

her employers reaction to the speech. Garcetti, 547 U.S. at 418; see alsoDumas v. Kipp, 90

F.3d 386, 39293 (9th Cir. 1996) (affirming dismissal of complaint, finding that complaints

allegations that defendants retaliated against plaintiff for writing a critical letter by

conducting an overly-intrusive audit were minimal and conclusory allegations

insufficient to state a claim).

The allegations with respect to religion similarly fail. To allege a violation of the FirstAmendment with respect to the free exercise of religion, the plaintiff must show that the

challenged conduct resulted in an impairment of the plaintiffs free exercise of genuinely

held beliefs. Williams v. California, 990 F. Supp. 2d 1009, 1020 (C.D. Cal. 2012), affd, 764

F.3d 1002 (9th Cir. 2014). No such allegations appear in the SAC. Plaintiffs allege at mos

that Defendant Thompson made reference to his Mormon faith in the workplace [SAC

44, 109, 113], but do not allege that any Defendant impeded any Plaintiffs ability to exercise

genuinely held beliefs. The claim therefore fails.

2. Plaintiffs Have Not Alleged a Violation of Second Amendment Rights.

In a single paragraph, Plaintiffs assert that Violations of the Second Amendment to

the Constitution and Arizona law also occurred when Plaintiff Mansfield was told he could

not carry a weapon outside of work. [SAC, 165.] This bare assertion does not state a

claim for relief. Indeed, it does not even identify which of the Individual Defendants (if any)

allegedly made this statement. The SAC does not allege the violation by any Defendant of

any right secured by the Second Amendment, and therefore fails.5

5 Further, research has not revealed any cases in this Circuit in which a SecondAmendment violation was found outside of the context of a government regulationapplicable to all members of a specific class of people. See, e.g., Nordyke v. King, 681 F.3d1041, 1044 (9th Cir. 2012) (upholding county ordinance applicable to gun shows as notviolating the Second Amendment).



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3. Plaintiffs Have Not Alleged a Due Process Violation.

Plaintiffs due process allegations are similarly vague and non-specific. Plaintiffs

generally allege that the due process rights of unidentified employees were violated by

various conduct occurring at unspecified times by and to unspecified individuals, including

the absence of a Garrity admonishment,6the lack of breaks to consult with counsel, the

presence of witnesses, and the failure to describe the conduct of which the employee was

accused. [SAC, 42.] Plaintiffs further allege that they and other officers were denied the

right to review evidence and cross-examine witnesses. [Id., 43.] However, these allegations

are entirely conclusory and in no way establish a deprivation of any protected liberty orproperty interest of any Plaintiff. Absent specific facts sufficient to show that Defendants

engaged in conduct that (1) deprived Plaintiffs of a liberty or property interest (2) without

the opportunity to be heard at a meaningful time and in a meaningful manner, their due

process claim fails. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (The fundamental

requirement of Due Process is the opportunity to be heard at a meaningful time and in a

meaningful manner) (internal quotations omitted).

4.

Plaintiffs Have Not Alleged an Equal Protection Violation.

To state a claim under 42 U.S.C. 1983 for a violation of the Equal Protection

Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with

an intent or purpose to discriminate against the plaintiff based upon membership in a

protected class. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). The SAC does not even try to allege tha

any Plaintiff was a member of a protected class. To the contrary, the SAC appears to base

its equal protection claim on conduct targeted to others. [See SAC, 177 (alleging that

6 A so-called Garritywarning is an assurance by a government employer to an employeeprior to an investigatory interview that the employee will not be punished solely for assertinghis Fifth Amendment privilege. SeeUnited States v. Goodpaster, 65 F. Supp. 3d 1016, 1030 (DOr. 2014). A plaintiff cannot pursue a 1983 claim predicated on a violation of FifthAmendment rights absent allegations that the defendant made an incriminating use of theplaintiffs statement. Aguilera v. Baca, 510 F.3d 1161, 1173 (9th Cir. 2007). Plaintiffs makeno such allegations.



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Defendants engaged in conduct for the purpose of depriving, either directly or indirectly

any person or class of personsof the equal protection of the laws, or of equal privileges

and immunities under the laws. They did so for their own personal benefit, to keep control

of their positions, to further promote those within the clique, and to discriminate based

on age or experience, sex, religion or other factors.) (emphasis added).] This is not a

class action lawsuit, and Plaintiffs may not base their own claims on conduct allegedly

targeted to others.

5. Plaintiffs May Not Pursue a Claim Based on Supervisory Liability.

Although not explicitly stated in the SAC, Plaintiffs appear to be seeking to holdcertain of the Individual Defendants liable based solely on their supervisory positions. For

example, Plaintiffs allege that Morgan Olson was aware of a number of issues within the

ASUPD without any action or investigation being taken and failed to act after being made

aware of supposedly wrongful conduct. [SAC, 150-51.] Plaintiffs make similar

allegations against Defendants Allen Clark, William Orr, and Kevin Salcido. [SAC, 127

30, 135.]

However, supervisors may not be liable under 1983 for the conduct of their

subordinates on a pure respondeat superior liability theory. Hansen v. Black, 885 F.2d 642

64546 (9th Cir. 1989). Instead, a supervisor may be liable only if there exists either (1) his

or her personal involvement in the constitutional deprivation, or (2) a sufficient causa

connection between the supervisors wrongful conduct and the constitutional violation.

Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen, 885 F.2d at 646); Hydrick v

Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (affirming dismissal of claims against supervisors

finding that conclusory allegations that defendants had personal knowledge of retaliation

and policies that encouraged retaliation were insufficient to state a plausible claim)

Therefore, to state a claim against a supervisor, a plaintiff must allege facts to plausibly

demonstrate the supervisors individual participation in and liability for the alleged

deprivation of the plaintiffs constitutional rights. Iqbal, 556 U.S. at 68081 (allegations that

director and attorney general knew or, condoned, and willfully and maliciously agreed to



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subject [plaintiff] to harsh conditions of confinement, that the former attorney general was

the principal architect of the policy and that the former FBI director was instrumental in

adopting and executing it could not establish 1983 liability). Plaintiffs attempt to predicate

their 1983 claim on a conclusory theory of supervisory liability therefore fails.

E. Plaintiffs Fail to State a Claim Under 42 U.S.C. 1985.

To state a claim under 42 U.S.C. 1985 (the Klu Klux Klan Act of 1871), a plaintiff

must allege facts sufficient to show: (1) a conspiracy; (2) for the purpose of depriving a

person or class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws; (3) an act in furtherance of the conspiracy; (4) resulting injury toperson or property or deprivation of any federal right or privilege. SeeSever v. Alaska Pulp

Corp., 978 F.2d 1529 (9th Cir. 1992) (citing United Brotherhood of Carpenters & Joiners of Am. v

Scott, 463 U.S. 825, 82829 (1983)).

The second element requires allegations that the intended deprivation was motivated

by some racial, or perhaps otherwise class-based, invidiously discriminatory animus. Id

(internal quotations and citation omitted). See also Orin v. Barclay, 272 F.3d 1207, 1217 (9th

Cir. 2001) (To prove a violation of 1985(3), Orin must show some racial, or perhaps

otherwise class-based, invidiously discriminatory animus behind the conspirators action.)

(quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Under controlling Ninth Circuit

precedent, the plaintiff must demonstrate that he or she is a member of a class that requires

special federal assistance in protecting its civil rights. McCalden v. Cal. Library Assn, 955

F.2d 1214, 1223 (9th Cir. 1990), superseded by rule on other grounds (internal quotation marks

omitted). Applying this test, the Ninth Circuit has extended 1985 liability only to claims

involving recognized suspect or quasi-suspect classes. Compare Life Ins. Co. of N. Am. v

Reichardt, 591 F.2d 499, 505 (9th Cir. 1979) (holding that women were class within meaning

of 1985(3), reasoning that it is well-established that gender-based classifications may result

in invidious discrimination) with Sever, 978 F.2d at 1538 (individuals who wish to petition

government are not a protected class in need of special federal assistance).

As explained above, Plaintiffs do not assert that they are members of a protected



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class or that there was class-based, invidiously discriminatory animus behind Defendants

alleged actions. At most, Plaintiffs allege they are generically discriminated against because

they are not members of a clique. [See, e.g., SAC 26.] Such allegations cannot sustain a

1985 claim. See, e.g., Bray v. Alexandria Womens Health Clinic, 506 U.S. 263, 26970 (1993)

(alleged discrimination against class of women seeking abortions insufficient to establish

claim under 1985);McCalden, 955 F.2d at 1223 (dismissing plaintiffs 1985 claim based on

membership in class of Holocaust revisionists allegedly discriminated against for

unpopular historical views). Accordingly, Plaintiffs 1985 claim should be dismissed.

F.

Plaintiffs Failure to Serve a Notice of Claim Bars All State Law Claims.In a footnote to the SAC, Plaintiffs reference the notice of claim that Arizona law

requires prior to the initiation of a lawsuit against a public entity. [SAC, 20, n.1] Plaintiffs

state that they are simultaneously filing said notice, conceding that they did not do so prior

to filing their SAC. Indeed, Plaintiffs did not serve a notice of claim until after receiving

Defendants draft motion to dismiss, which raised the issue, and participating in the Court-

required meet and confer process. A notice of claim, however, is an absolute prerequisite to

pursing a state law claim seeking damages against an Arizona public entity or public

employee. SeeA.R.S. 12-821.01(A); Nored v. City of Tempe, 614 F. Supp. 2d 991, 998 (D

Ariz. 2008) (granting motion to dismiss based on failure to comply with notice of claim

statute). Plaintiffs failure to file a notice of claim serves as an absolute bar to any claims

brought under state law. SeeNored, 614 F. Supp. 2d at 998.

Plaintiffs belated attempt to file a notice of claim simultaneously with their SAC does

not save their state law claims from dismissal. Arizona law is clear that the notice of claim

must be served prior to initiating a lawsuit, and the public entity given 60 days to evaluate

and respond to it. See, e.g.,Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, 294,

1, 152 P.3d 490, 491 (2007) (Before initiating an action for damages against a public entity

a claimant must provide a notice of claim to the entity.) (citingA.R.S. 12821.01); Bryant v

City of Goodyear, No. CV-12-00319-PHX-JAT, 2013 WL 4026879, at *4 (D. Ariz. Aug. 7,

2013) ([N]umerous Arizona cases, including Arizona Supreme Court cases, have interpreted



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Arizonas notice of claim statute as requiring a claim to be filed and disallowed before a

lawsuit may be filed.). As Plaintiffs admit that they have not done so, their state law claims

for intentional infliction of emotional distress, falsification of records and violation of the

Arizona Civil Rights Act must be dismissed. See Chen v. Maricopa Cty., No. 12-CV-00814-

PHX-GMS, 2013 WL 1045484, at *4 (D. Ariz. Mar. 14, 2013) (dismissing state law tort and

ACRA claims for failure to comply with A.R.S. 12-821.01).

G. Plaintiffs Fail to State a Claim for Intentional Infliction of EmotionalDistress.

Under Arizona law, intentional infliction of emotional distress requires proof of threeelements: 1) extreme and outrageous conduct; 2) either intent to cause emotional distress or

reckless disregard of the near certainty that such distress will result; and 3) severe emotional

distress resulting from the conduct. SeeCitizen Publg Co. v. Miller, 210 Ariz. 513, 516, 11

115 P.3d 107, 110 (2005);Mintz v. Bell Atl. Sys. Leasing Intl, Inc., 183 Ariz. 550, 553-54, 905

P.2d 559, 562-63 (App. 1995). The standard for extreme and outrageous conduct is high

as Plaintiff must allege facts demonstrating that Defendants conduct was so outrageous in

character and so extreme in degree, as to go beyond all possible bounds of decency, and to

be regarded as atrocious and utterly intolerable in a civilized community. Loos v. Lowes

HIW, Inc., 796 F. Supp. 2d 1013, 1023-24 (D. Ariz. 2011) (quoting Mintz, 183 Ariz. at 553-54

905 P.2d at 56263). Whether alleged conduct is sufficiently extreme and outrageous for an

emotional distress claim is a matter of law to be determined initially by the court. See Patton

v. First Fed. Sav. & Loan Assn of Phoenix, 118 Ariz. 473, 476, 578 P.2d 152, 155 (1978) (It is

the duty of the court as societys conscience to determine whether the acts complained of

can be considered sufficiently extreme and outrageous to state a claim for relief.).

No facts alleged in the SAC reach the required standard. Plaintiffs complain generally

about supposedly falsified reports, working conditions, and discipline, but make no

allegations that rise to the level of extreme or outrageous conduct that could even

potentially result in severe emotional distress. Plaintiffs two allegations of physical injury

are similarly deficient. One contains so little factual detail that it is impossible to determine



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what the injury purportedly was, let alone evaluate the conduct that supposedly inflicted the

injury. [See SAC, 72 (Plaintiffs OHayer and Murphy suffered serious harassment and

physical injury through Defendants providing defective weapons and making the employees

set the gun range up outside of the scope of their employment duties.).] And the other

alleges a physical injury that occurred in 2002, 14 years ago, and did not involve any

Defendant.7 [SeeSAC, 102 (Plaintiff Murphy had a titanium elbow implanted in his right

arm because Corporal Larry Fuchtman was not certified to teach a cyclist class in 2002

.).] The emotional distress claim has no cognizable factual basis and should be

dismissed.H. Plaintiffs Have Not Stated a Claim for the Falsification of Records.

Count Four of the SAC is entitled Falsification of Records, but does not identify a

statutory or other legal basis for this claim. The only authority cited anywhere in the SAC

relating to record-keeping is the federal Jeanne Clery Disclosure of Campus Security Policy

and Campus Crime Statistics (Clery) Act, 20 U.S.C. 1092. [SeeSAC, 48 (The Clery

Act was violated through false reporting on crime statistics and noncompliance with Federal

community notification mandates.).] However, the Clery Act explicitly provides that it does

not create a private cause of action. See20 U.S.C. 1092(f)(14)(A) (providing that nothing in

the act may be construed to(i) create a cause of action against any institution of higher

education or any employee of such institution for any civil liability; or (ii) establish any

standard of care). In fact, alleged violations of the Acts reporting requirements are no

even admissible as evidence in a court proceeding. 20 U.S.C. 1092(f)(14)(B). As the

Falsification of Records claim either has no legal basis or is based on a federal statute that

expressly prohibits it, the claim must be dismissed.8

7 The limitations period applicable to an emotional distress claim against public entitiesand employees is one year. SeeA.R.S. 12-281; Watkins v. Arpaio, 239 Ariz. 168, 19, 367P.3d 72, 77 (App. 2016).8 To the extent Plaintiffs attempt to argue the claim is supported by state law, thefalsification of records claim, like the intentional infliction of emotional distress claim,would also be barred as a result of Plaintiffs failure to file a notice of claim. SeeNored, 614F. Supp. 2d at 998.



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I. Plaintiff Cornfield Fails to State an Age Discrimination Claim Under

State or Federal Law.

A private individual may only maintain a federal statutory claim against the state or an

arm of the state, such as ABOR, if (1) Congress validly abrogated state sovereign immunity

or (2) the state has waived immunity. SeeAlden, 527 U.S. at 75556. Neither condition is

met here. Congress has not validly abrogated state sovereign immunity to suits by

individuals under the ADEA. SeeKimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000). And

Arizona has not waived that immunity; to the contrary, legislative history indicates that the

statute addressing liability of public entities is limited to liability under state law. See Backus vState, 220 Ariz. 101, 104, 203 P.3d 499, 502 (2009) ([I]t is hereby declared to be the public

policy of this state that public entities are liable for acts and omissions of employees in

accordance with the statutes and common law of this state. (quoting1984 Ariz. Sess. Laws

ch. 285 1 (2d Reg. Sess.) (emphasis added)). Accordingly, the ADEA claim must be

dismissed. See Gorney v. Ariz. Bd. of Regents, 43 F. Supp. 3d 946, 952 (D. Ariz. 2014)

(dismissing FLSA claim on immunity grounds); Lee v. Arizona, No. CV 10-8135-PCT-JAT

2011 WL 2580400, *5 (D. Ariz. June 29, 2011) (dismissing ADEA claim against ABOR and

the State of Arizona on the basis of sovereign immunity).

In addition, Plaintiff Cornfield has not alleged facts sufficient to state an age

discrimination claim under state or federal law. Such a claim requires alleged facts showing

1) Cornfield is a member of the protected class; 2) Cornfield was qualified for his position;

3) Cornfield was subject to an adverse employment action; and 4) similarly-situated

individuals outside Cornfields protected class were treated more favorably. SeeLongariello v

Phoenix Union High Sch. Dist., No. CV-09-1606-PHX-LOA, 2009 WL 4827014, at *3 (D. Ariz

Dec. 15, 2009) (citing Diaz v. Eagle Produce Ltd. Pship, 521 F.3d 1201, 1207 (9th Cir. 2008))

The sole allegation in the SAC relating to age discrimination is the conclusory statement that

Plaintiff Cornfield is over 40 years of age, and he was targeted, threatened with discharge

harassed and disciplined due to his age. [SAC, 196.] There are no facts to support this

statement, and no allegation that younger employees similarly situated were treated



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differently. Accordingly, under both the ADEA and the ACRA, the age discrimination claim

fails. See Longariello, 2009 WL 4827014, at *3 (dismissing ADEA and ACRA claims for

failure to state a claim upon which relief could be granted, noting that the ACRA mirrors

the relevant federal language).

J. Arizona Law Precludes Punitive Damages.

Finally, it is black-letter law in Arizona that public employees cannot be subjected to

punitive damages on state law claims. SeeA.R.S. 12-820.04 (Neither a public entity nor a

public employee acting within the scope of his employment is liable for punitive or

exemplary damages.). Nothing in the SAC suggests that Plaintiffs are seeking to hold theIndividual Defendants liable for any actions not within the scope of their employment, and

Plaintiffs have failed to state any viable federal law claims against the Individual Defendants.

Accordingly, Plaintiffs request for punitive damages must be dismissed.

III. CONCLUSION.

While long on inflammatory accusations and charged language, the SAC falls far

short of stating plausible, cognizable claims. The SAC does not provide Defendants with

fair notice of the specific misconduct, instead offering a litany of non-specific, non-

actionable employment grievances. The SAC further does not sufficiently state a single

cognizable claim arising from the violation of constitutional rights. Respectfully, the SAC

should be dismissed in its entirety. Further, the dismissal must be with prejudice. Plaintiffs

have failed in three attempts to state viable claims and instead have used the court systems as

a platform for their charged but legally baseless invective against a state law enforcement

agency.9 Arizona taxpayers should not be put to any future expense in responding to

Plaintiffs irresponsible and abusive tactics.

9 This court has recently dismissed two actions brought by Plaintiffs counsel David WDow with prejudice after multiple amendments failed to result in cognizable claims. SeeSmillie v. Cty. of Maricopa, 2016 WL 1212092, at *1 (9th Cir. Mar. 29, 2016) (affirmingdismissal of third amended complaint, including 1983 claim, with prejudice, noting thatthe district court reasonably determined there was no justification for further amendmentand delay); West v. City of Mesa, No. CV-12-00657-PHX-DGC, 2015 WL 1959467, *7 (DAriz. 2015) (dismissing 1983 claim with prejudice after three amendments failed to result infactual allegations that were not conclusory and not entitled to a presumption of truth).



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DATED this 9th day of May, 2016.

Cohen Kennedy Dowd & Quigley, P.C.The Camelback Esplanade I2425 East Camelback Road, Suite 1100Phoenix, Arizona 85016Attorneys for Defendants

By: /s/ Daniel G. DowdDaniel G. DowdRebecca van DorenAllison N. Clemency



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CERTIFICATE OF SERVICE

I hereby certify that on May 9, 2016, I electronically transmitted the attached document to

the Clerks office using the CM/ECF System for filing and transmittal of a Notice of

Electronic Filing to the following CM/ECF registrants:

David W. DowThe Law Offices of David W. Dow3104 East Camelback Road, #281Phoenix, Arizona [email protected]

___/s/ Rebecca van Doren____________


asu motion to dismiss

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