Opinion
2 CA-CV 2023-0111
06-28-2024
Devan Kingery, a single woman, and Elizabeth Durazo, a single woman, Plaintiffs/Appellants, v. Mark Dannels, in his official capacity as Cochise County Sheriff, Defendant/Appellee.
Miller, Pitt, Feldman & McAnally, Tucson By Peter Timoleon Limperis and Nathan B. Webb Counsel for Plaintiffs/Appellants Jellison & Robens PLLC, Scottsdale By James M. Jellison, Mark J. Robens, and Rodney F.W. States Counsel for Defendant/Appellee
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20202027 The Honorable Greg Sakall, Judge
Miller, Pitt, Feldman & McAnally, Tucson
By Peter Timoleon Limperis and Nathan B. Webb
Counsel for Plaintiffs/Appellants
Jellison & Robens PLLC, Scottsdale
By James M. Jellison, Mark J. Robens, and Rodney F.W. States
Counsel for Defendant/Appellee
Judge Gard authored the decision of the Court, in which Chief Judge Vasquez and Judge Kelly concurred.
MEMORANDUM DECISION
GARD, Judge:
¶1 This case concerns whether the Cochise County Sheriff, Mark Dannels, is statutorily immune from liability for negligence claims arising out of former jail chaplain Douglas Packer's sexual assault of two inmates. Devan Kingery and Elizabeth Durazo appeal from the superior court's order granting summary judgment in favor of Sheriff Dannels. They challenge the court's determination that they did not present a triable issue of fact regarding the Sheriff's actual knowledge of Packer's propensity to engage in sexual misconduct, as required by A.R.S. § 12-820.05(B). For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to Kingery and Durazo, the non-moving parties, and draw all reasonable inferences in their favor. See Gallagher v. Tucson Unified Sch. Dist., 237 Ariz. 254, ¶ 2 (App. 2015). In January 2019, Kingery and Durazo were inmates at the Cochise County Jail when they reported to jail officials that Packer had sexually assaulted Kingery and ordered Durazo to watch. The Cochise County Sheriff's Office launched an investigation, which resulted in Packer being arrested and charged. Packer ultimately pled guilty to six felony offenses, including sexual offenses against four other inmates committed between 2014 and 2019, and he is currently incarcerated.
¶3 In October 2019, Kingery and Durazo filed a civil complaint against Packer for assault, battery, and intentional infliction of emotional distress arising out of the reported incident. The complaint further stated two claims against Cochise County and the Sheriff, in his official capacity, for negligent supervision and negligent retention of Packer. It alleged that the Sheriff and other officials and employees of the Cochise County Sheriff's Office knew of Packer's propensity to engage in sexual conduct with inmates and failed to take any steps to prevent or admonish that conduct or to discipline Packer.
Cochise County was later dismissed as a defendant and is not a party to this appeal.
¶4 The Sheriff moved for summary judgment, arguing, in relevant part, that his office was immune from liability for Packer's felonious conduct under § 12-820.05(B) because there was no evidence that either he or his supervisory staff had actual knowledge of Packer's propensity to engage in such conduct. In response, Kingery and Durazo contended the Sheriff knew of Packer's propensity to engage in sexual conduct with inmates based on the "secluded office environment" Packer had created, his violation of jail policies that prohibited personal relationships with inmates, concerns regarding his behavior that staff had expressed to supervisors, and repercussions staff allegedly suffered for voicing their concerns.
¶5 The superior court determined the undisputed facts established Sheriff Dannels did not have actual knowledge of Packer's propensity. It found as follows:
[W]hile [Kingery and Durazo's] facts might raise genuine issues of fact[] regarding whether Packer violated jail rules and also whether he exhibited other non-criminal and unusual behaviors, they do not present a triable issue of fact regarding whether before January 4, 2019, Dannels had any actual knowledge of sexual misbehavior or sexual assault by Packer, or any propensity for the same.
It therefore ruled that § 12-820.05(B) applies as a matter of law and granted summary judgment.
The court later entered default judgment against Packer for Kingery and Durazo's claims against him. He is not a party to this appeal.
¶6 Kingery and Durazo moved for a new trial, arguing the superior court erred by disregarding circumstantial evidence of the Sheriff's actual knowledge. They pointed to the fact that jail employees had complained about Packer and were thereafter either disciplined or silenced as proof of the Sheriff's knowledge. The court denied the motion and entered final judgment in favor of Sheriff Dannels. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1), (5)(a).
Discussion
¶7 Kingery and Durazo contend the superior court erred by granting summary judgment in favor of Sheriff Dannels because: (1) circumstantial evidence is sufficient to prove actual knowledge under § 12-820.05(B); (2) the evidence they presented established a factual dispute as to whether the Sheriff knew of Packer's propensity to engage in felonious sexual misconduct with female inmates; and (3) the court "invaded the province of the jury by weighing that evidence."
I. Applicable law
¶8 We review de novo a superior court's ruling granting summary judgment. See Gallagher, 237 Ariz. 564, ¶ 8. Summary judgment is proper when "the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a). Accordingly, the moving party bears the initial burden of production and "must come forward with evidence it believes demonstrates the absence of a genuine issue of material fact and must explain why summary judgment should be entered in its favor." Nat'l Bank of Ariz. v. Thruston, 218 Ariz. 112, ¶¶ 14-15 (App. 2008). If the non-moving party bears the burden of proof on the claim or defense at trial, the moving party "need not affirmatively establish the negative of the element." Orme Sch. v. Reeves, 166 Ariz. 301, 310 (1990). Though conclusory statements will not suffice, the movant "need merely point out by specific reference to the relevant discovery that no evidence exist[s] to support an essential element of the claim." Id.
¶9 If the movant satisfies its initial burden, "the burden then shifts to the non-moving party to present sufficient evidence demonstrating the existence of a genuine factual dispute as to a material fact." Thruston, 218 Ariz. 112, ¶ 26. A genuine dispute of material fact is "one which a reasonable trier of fact could decide in favor of the party adverse to summary judgment on the available evidentiary record." United Bank of Ariz. v. Allyn, 167 Ariz. 191, 195 (App. 1990). "[T]he non-moving party must call the court's attention to evidence overlooked or ignored by the moving party or must explain why the motion should otherwise be denied." Thruston, 218 Ariz. 112, ¶ 26. We will affirm a superior court's order granting summary judgment "if the evidence produced in support of the defense or claim has so little probative value that no reasonable person could find for its proponent." Takieh v. O'Meara, 252 Ariz. 51, ¶ 11 (App. 2021) (quoting State Comp. Fund v. Yellow Cab Co. of Phx., 197 Ariz. 120, ¶ 5 (App. 1999)).
¶10 As relevant here, a public entity is immune from liability "for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee's propensity for that action." § 12-820.05(B). Under the statute, constructive knowledge-or "[k]nowledge that one using reasonable care or diligence should have," Constructive Knowledge, Black's Law Dictionary (11th ed. 2019)-is insufficient to establish the public entity "knew" of the employee's propensity. See Tucson Unified Sch. Dist. v. Borek, 234 Ariz. 364, ¶ 8 (App. 2014). Instead, the "immunity applies unless the public entity actually knew of the 'employee's propensity for that action.'" Id. ¶ 10 (quoting § 12-820.05(B)) (emphasis added).
II. The superior court did not err by granting summary judgment in the Sheriff's favor.
¶11 As set forth above, our case law is clear-and the parties do not dispute-that actual knowledge is required to render statutory immunity inapplicable. Id. The parties also do not dispute that Kingery's and Durazo's losses arose out of Packer's felonious conduct while employed by a public entity. At issue here is only whether the evidence Kingery and Durazo presented to prove the Sheriff had actual knowledge of Packer's propensity to engage in sexual misconduct with inmates before the events involving Kingery and Durazo was sufficient to create a genuine issue of material fact precluding summary judgment. We agree with the superior court that the evidence does not prove actual knowledge, even circumstantially.
A. The Sheriff's proffered evidence
¶12 To carry his initial burden of production, the Sheriff was required to point out, by reference to relevant evidence, a lack of genuine dispute as to whether he or supervisory jail staff had actual knowledge of Packer's propensity to engage in sexual misconduct with inmates. See Thruston, 218 Ariz. 112, ¶¶ 14-15; Orme Sch., 166 Ariz. at 310. The Sheriff supported his motion with information regarding his office's zero-tolerance policy for sexual contact between staff and inmates; affidavits from numerous jail employees; and deposition testimony from Kingery, Durazo, and detention officers. We conclude the Sheriff met his initial burden of production.
¶13 At the time of Packer's misconduct, the Sheriff's upper-level command staff included Chief of Staff Thad Smith and Jail Commander Kenneth Bradshaw. Lieutenant Christy Heisner Cardona was typically the highest-ranking staff member on-site at the jail. Other members of the chain-of-command at the jail included Lieutenant Ariel Monge, Sergeant Jacqueline Olson, and Sergeant Fernando Figueroa.
¶14 According to officials, the Sheriff's Office "maintains policies and procedures that prohibit sexual relations, activities, or encounters between inmates or between [j]ail staff and inmates," consistent with the federal Prison Rape Elimination Act (PREA). See 34 U.S.C. §§ 30301-30309 . When inmates are first booked into the jail facility, they are provided with handouts on the PREA, as well as information regarding available reporting avenues. Jail policies also prohibit staff from establishing personal relationships with inmates; engaging in intimate contact, sexual behavior, or other inappropriate behavior with inmates; and maintaining social, emotional, sexual, business, or financial associations with inmates released from custody within the past two years.
¶15 Despite the jail's zero-tolerance policies and Packer's convictions for sexual offenses against inmates dating back to 2014, the Sheriff asserts it is undisputed that, before Kingery and Durazo's report, jail staff had not received reports of or observed sexual abuse of jail inmates by Packer. Sheriff Dannels, Chief of Staff Smith, Jail Commander Bradshaw, Lieutenant Heisner Cardona, Lieutenant Monge, and Sergeant Olson all disavowed having observed any inappropriate sexual conduct by Packer or having knowledge of any policy violations or reports of misbehavior before January 2019.
¶16 And although three former jail employees-Sergeant Figueroa and detention officers Maritza Andress and Oziel Aleman- testified they had expressed concerns about Packer's behavior dating back to 2014, they admitted they had not personally observed any sexual conduct by Packer or received any allegations thereof. All three testified that, if they had, they would have submitted formal reports. This evidence sufficed to make a threshold showing that there was no genuine dispute of material fact as to the jail staff's lack of actual knowledge of Packer's misconduct.
B. Kingery and Durazo's proffered evidence
¶17 To establish a triable issue of material fact on the actual-knowledge question, Kingery and Durazo pointed to deposition testimony from Andress, Aleman, and Sergeant Figueroa about the concerns they had voiced to other jail staff beginning in 2014. All three employees first became concerned that Packer was acting inappropriately with inmates due, in part, to his conduct in locking his office door when meeting with inmates and making modifications to his office, including tinting the windows, covering vents leading to an adjacent office, and soundproofing the walls.
1. Officer Maritza Andress
¶18 During her employment, Officer Maritza Andress observed "red flags" that led her to believe that Packer was "doing favors" for inmates. She explained that Packer would enter the control room and switch the camera views to observe specific female inmates. Andress described Packer as "tak[ing] deep breaths" while looking at the females "as if he liked it." Packer would then pull the same females into his office for several hours a day. She observed that after the inmates left his office, Packer appeared "red in the face and sweating" as though he had engaged in physical activity. She also opined that Packer had begun to develop an "inappropriate" personal interest in certain inmates by helping them write a book, attending their court hearings, and expressing aggression toward other officers who did not believe in their innocence.
¶19 Andress did not make any written reports or complaints about Packer but testified she had expressed her concerns to two supervisors in her chain-of-command. She described one instance in which she had asked Corporal Rice, her acting supervisor at the time, if he thought something was "going on" with Packer after she informed him he was repeatedly pulling the same female inmates into his office. According to Andress, Rice replied, "[N]o, not the chaplain." In another instance, she relayed the same concern to Sergeant Figueroa, but could not recall if he had said anything in response. Andress admitted she had not personally observed Packer engage in any sexual conduct with an inmate and stated that, if she had, she would have reported it in writing. She also affirmed that she had not suspected that Packer was engaging in improper sexual behavior with inmates at that time, but rather developed that belief after Kingery and Durazo's report in 2019.
¶20 Andress believed that, in retaliation for her complaints about Packer, she was moved from day shifts to night shifts. Jail Commander Bradshaw's explanation for Andress's shift change was that she had been working day shifts "for too long," but Andress testified another officer had told her she was moved because she had been "talking about the chaplain." She stated she had found it "odd" that Bradshaw told her about her shift change instead of a sergeant or lieutenant telling her through the usual chain-of-command. Andress also referred to an email that had been sent to jail staff around 2014 advising them to stop spreading rumors about Packer. She believed that the email had been sent due to her reports, and she was consequently afraid she would experience further repercussions if she continued talking to her supervisors about Packer.
2. Officer Oziel Aleman
¶21 Officer Oziel Aleman, Andress's brother, testified as to similar "red flags" he had noted regarding Packer beginning in 2014. Like Andress, Aleman noticed that Packer had been spending long periods of time with the same two female inmates in his office and that afterward he had appeared "giggly and joyful" with a "sweaty" forehead. Aleman testified he had told his supervisors that Packer "need[ed] to be looked into" because he believed something "inappropriate" was happening with the inmates, such as Packer "doing extra favors for them, doing something sexual, giving them things they're not supposed to have, things in that nature." He also observed Packer switching the cameras in the control room to focus on specific inmates.
¶22 Aleman attested he had expressed his concerns to Lieutenant Heisner Cardona, Sergeant Figueroa, and Corporal Rice and had often discussed Packer pulling the same "young, white females" out of their cells and into his office with other officers and staff. However, he never made a written report about Packer because he "was never instructed to do so" by his supervisors. He also admitted that he had not had direct, personal, or actual knowledge that Packer was engaging in sexual misconduct with inmates during the period before Kingery and Durazo's report, and that, if he had, he would have reported it up the chain-of-command. Like Andress, Aleman recalled communications from "command staff" directing employees to stop spreading rumors, at one point specifically mentioning Packer.
¶23 Aleman also testified he had been employed at the jail on the day of Kingery and Durazo's report and, as he was conducting a security check, they had told him what happened with Packer and asked him what they could do about it. Aleman was later interviewed as part of the investigation after he had reportedly told Kingery and Durazo that supervisors knew about Packer's misconduct before the incident. Aleman denied having made those statements, and was asked to take a polygraph test. He stated that, after he refused, he was placed on administrative leave and eventually terminated. Aleman construed this to be an attempt by supervisors to silence him.
3. Sergeant Fernando Figueroa
¶24 Sergeant Figueroa testified he had first become "suspicious" after Packer began locking his office door when meeting with a particular inmate for long periods of time every day. However, Figueroa admitted he did not "know what [Packer] was doing in there," that Packer "might have been praying," and that he had not made any formal reports because he was "not going to speculate." Figueroa acknowledged that officers Andress and Aleman had shared their concerns about Packer's behavior with him and that he had relayed those concerns to Lieutenant Monge. He testified that in response, Monge had "got[ten] a little upset" and warned him not to spread rumors. Figueroa opined that the jail staff protected Packer and had given him "preferential treatment," such as providing him with a personal vehicle and often sending staff emails praising him. Figueroa feared he would suffer repercussions if he continued to voice his concerns. He testified that if he had known of sexual abuse of an inmate by Packer, he would have made a written report, regardless of any fears of potential repercussions as a result.
C. There is no genuine issue of material fact regarding whether the Sheriff had actual knowledge of Packer's propensity.
¶25 Kingery and Durazo argue the employees' suspicions coupled with the Sheriff's alleged retaliatory actions-including "[p]eremptorily quashing discussion of Packer's behavior by sending a memo to stop spreading rumors, silencing anyone who tried to speak out, and punishing those that did"-constituted sufficient evidence to raise an issue of the Sheriff's actual knowledge of Packer's propensity to engage in sexual conduct with inmates. Kingery and Durazo acknowledge that their evidence may show the Sheriff's constructive knowledge, but they argue that constructive knowledge serves as circumstantial evidence of actual knowledge. We agree with the Sheriff, however, that the facts Kingery and Durazo set forth are "insufficient to allow a jury to conclude, beyond speculation, that they meet the statutory requirement . . . to show 'actual knowledge' of 'propensity.'"
¶26 The opponent of a motion for summary judgment must point to competent evidence that would justify a trial on the issue, and "[h]earsay or speculation is not competent evidence." Cullison v. City of Peoria, 120 Ariz. 165, 168 (1978). "Speculation that some slight doubt, scintilla of evidence, or dispute over irrelevant or immaterial facts might blossom into a real controversy at trial is insufficient to forestall summary judgment." Menendez v. Paddock Pool Constr. Co., 172 Ariz. 258, 269 (App. 1991); see also Modular Mining Sys., Inc. v. Jigsaw Techs., Inc., 221 Ariz. 515, ¶ 19 (App. 2009) ("Sheer speculation is insufficient . . . to defeat summary judgment." (alteration in Modular Mining Sys.) (quoting Badia v. City of Casa Grande, 195 Ariz. 349, ¶ 29 (App. 1999))).
¶27 For both circumstantial and direct evidence of knowledge, a party must show facts that prove "the existence of some fact from which fact the existence of the thing in issue may be legally and logically inferred." Dawson v. Withycombe, 216 Ariz. 84, ¶ 52 (App. 2007) (quoting State v. Riley, 12 Ariz.App. 336, 337 (1970)). Here, viewing the evidence and drawing all reasonable inferences in the light most favorable to Kingery and Durazo, see Gallagher, 237 Ariz. 254, ¶ 2, we cannot say a reasonable trier of fact could conclude that the Sheriff had actual knowledge of Packer's sexual misbehavior or his propensity for the same. Officer Andress, Officer Aleman, and Sergeant Figueroa expressed suspicions about Packer, but these suspicions were speculative in nature. Although they had observed behavior they characterized as "odd," "unusual," or amounting to "red flags," they each denied personally observing, receiving reports from inmates, or submitting reports themselves that Packer had engaged in sexual misconduct. The employees themselves did not have actual knowledge of Packer's propensity, and therefore any information they shared with supervisory staff, without more, was merely "inference upon inference, which stretches the evidence presented beyond the bounds of circumstantial evidence." Dawson, 216 Ariz. 84, ¶ 52. The employees' suspicions therefore did not impute actual knowledge to the Sheriff. We are thus not persuaded by Kingery and Durazo's position that the cumulative effect of the employees' speculation combined with the Sheriff's alleged retaliation equates to actual knowledge.
The parties do not raise as an issue whether actual knowledge under § 12-820.05(B) must be held by the Sheriff personally, or whether knowledge held by supervisory staff could be imputed to him. Similarly, the parties do not discuss what level of the chain-of-command constitutes "supervisory" staff. Nonetheless, because we conclude the evidentiary record does not establish that any employee had actual knowledge of Packer's sexual misconduct or propensity therefor, we need not reach these issues.
¶28 Moreover, the mere fact that these individuals may have suffered adverse personnel action after commenting on Packer's behavior does not, standing alone, establish that the Sheriff possessed actual knowledge of Packer's propensities. Likewise, Kingery's and Durazo's reliance on the alleged email advising staff to refrain from spreading rumors about Packer does not prove actual knowledge. Presuming that email was sent and its content was as the witnesses described, see Gallagher, 237 Ariz. 254, ¶ 2, it would suggest at most that supervisory staff were aware that jail employees were discussing Packer in some capacity. At best, the staff's awareness of rumors regarding Packer could prove that the Sheriff should have inquired into Packer's behavior-in other words, that he had constructive knowledge of Packer's propensity-but it falls short of revealing the required actual knowledge. Cf. In re Tocco, 194 Ariz. 453, ¶ 11 (1999) (in circumstance where "actual knowledge can be proven by circumstantial evidence, a mere showing that the attorney reasonably should have known her conduct was in violation of the rules, without more, is insufficient").
A copy of the email is not part of the record, and there is dispute as to whether it specifically referred to Packer.
¶29 Accordingly, a trier of fact considering Kingery and Durazo's proffered evidence could not find the required actual knowledge without employing unreasonable inferential steps and resorting to speculation. We therefore cannot say the superior court erred by granting summary judgment in the Sheriff's favor. See § 12-820.05(B); Matts v. City of Phoenix, 137 Ariz. 116, 119 (App. 1983) (jury may not "draw speculative inferences which [are] not based on probative facts"); Dawson, 216 Ariz. 84, ¶ 52.
¶30 Finally, Kingery and Durazo argue the superior court invaded the jury's province by weighing the evidence they presented. We disagree. The evidence presented here, even viewed in the light most favorable to Kingery and Durazo, was insufficient to establish a prima facie showing of actual knowledge. Therefore, in making its ruling the court did not need to "pass on the credibility of witnesses with differing versions of material facts," weigh the quality of evidence, or "choose among competing or conflicting inferences." Orme Sch., 166 Ariz. at 311. As noted above, the record before us contains no probative facts to support a reasonable inference, free from speculation, that the former employees' observations and the alleged retaliatory action taken against them evidenced the Sheriff's actual knowledge of Packer's propensity to sexually abuse inmates. See id. at 309 (proper to grant summary judgment "if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense").
Disposition
¶31 Like the superior court, we conclude that Kingery and Durazo failed to raise a genuine dispute of material fact as to whether Sheriff Dannels had actual knowledge of Packer's propensity to engage in sexual misconduct with inmates. For the foregoing reasons, we affirm.