Opinion
CV 24-00263-TUC-JGZ (MAA)
07-25-2024
Robert Zuniga, Plaintiff, v. Pima County; Pima County Sheriff' Department; Sheriff Chris Nanos; et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Michael A. Ambri United States Magistrate Judge
Pending before the court is a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), filed on July 1, 2024, by all defendants except for Sheriff Nanos in his official capacity. Doc. 14; Doc. 20, p. 2. The plaintiff, Robert Zuniga, filed a response on July 9, 2024. Doc. 17. The defendants filed a reply on July 16, 2024. Doc. 20.
The case has been referred to the Magistrate Judge for report and recommendation in accordance with 28 U.S.C. § 636(b)(1) and LRCiv. 72.1 and 72.2. Doc. 16.
The plaintiff, Robert Zuniga, is employed as a Corrections Lieutenant with the Pima County Sheriff's Department. Complaint, Doc. 1, p. 9. Zuniga alleges that his superiors concealed the truth about medical failures at the jail “forcing plaintiff to come forward as a whistle-blower and release the truth on social media and to news reporters on December 09, 2021.” Doc. 1, pp. 9-10. He asserts that he subsequently experienced “racial discrimination, retaliation, workplace bullying, and harassment.” Doc. 1, p. 10.
On May 23, 2024, Zuniga filed a Complaint in this court claiming (1) national origin discrimination (Title VII); (2) retaliation (Title VII); (3) hostile work environment (Title VII); (4)(a) national origin discrimination under the Equal Protection Clause (42 U.S.C.§ 1983); (4)(b) a First Amendment violation (42 U.S.C. § 1983); and (4)(c) a Fourteenth Amendment property interest due process violation (42 U.S.C. § 1983). Doc. 1, p. 5.
On July 1, 2024, the defendants, except for Sheriff Nanos in his official capacity, filed the pending motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 14. They argue that defendants Sheriff Nanos, in his personal capacity, Chief Lowing, and Captain Koumal should be dismissed with prejudice. Doc. 14, p. 3. They maintain that defendant Pima County Sheriff's Department is a non-jural entity that cannot be sued. Doc. 14, p. 3. They assert that defendant Pima County should be dismissed with prejudice because it is not vicariously liable for the conduct of the Sheriff or his employees. Doc. 14, p. 4. Last, they argue that punitive damages are not available against the only defendant that should remain, Sheriff Nanos in his official capacity. Doc. 14, p. 4. The motion should be granted in part.
Discussion
“A Rule 12(b)(6) motion tests the legal sufficiency of the claim.” Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011). The claim must allege a legally cognizable theory of relief and include factual allegations sufficient to support that theory. Hinds Investments, L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011).
To survive a motion to dismiss, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true even if doubtful in fact.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1965 (2007) (internal punctuation omitted). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Id. at 556, 1965 (internal punctuation omitted).
First, the defendants argue that Sheriff Nanos in his personal capacity, Chief Lowing, and Captain Koumal should be dismissed with prejudice. Doc. 14, p. 3. They assert that “[t]he claims alleged in the Complaint, including the 42 U.S.C. § 1983 claim, rely upon alleged violations of Title VII” and “[t]hese claims are not permitted against individual defendants.” Doc. 14, p. 3.
The court agrees that Title VII imposes liability against the plaintiff's employer, not individual defendants. Ortez v. Washington Cnty., State of Or., 88 F.3d 804, 808 (9th Cir. 1996) (“[E]mployees cannot be held liable in their individual capacities under Title VII.”); Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir. 1993) (“[I]ndividual defendants cannot be held liable for damages under Title VII . . . .”). Zuniga's constitutional claims brought pursuant to 42 U.S.C. § 1983, however, are another matter. Some of these claims may arise from the same operative facts as do the Title VII claims, but they are not Title VII claims, and they may be asserted against these defendants in their personal capacity. See Hafer v. Melo, 502 U.S. 21, 25, 31112 S.Ct. 358, 362, 365, 116 L.Ed.2d 301 (1991); see, e.g., Kentucky v. Graham, 473 U.S. 159, 168, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985) (“We conclude that this [§ 1983] case was necessarily litigated as a personal-capacity action . . . .”); Ortez v. Washington Cnty., State of Or., 88 F.3d 804, 810-811 (9th Cir. 1996) (The plaintiff's “claim that his discharge violated § 1983 by depriving him of his due process and First Amendment rights” asserted against “individual defendants” was improperly dismissed.); Nelson v. Cnty. of Sacramento, 926 F.Supp.2d 1159, 1165 (E.D. Cal. 2013) (“Parties can seek relief under § 1983 against persons acting under the color of state law” where the term persons “covers state and local officials sued in their individual capacities, private individuals and entities which acted under color of state law, and local governmental entities.”) (punctuation modified); Rolfe v. State of Ariz., 578 F.Supp. 1467, 1471 (D. Ariz. 1983) (Where the court construed the Title VII and section 1983 claims as naming certain “defendants in their individual capacities” the court found the allegations against three of the individuals “sufficient for jurisdictional purposes under § 1983.”).
The defendants further argue that the Pima County Sheriffs Department (PCSD) is a non-jural entity that cannot be sued. They are correct. Appolon v. The, No. CV 17-00205-TUC-JGZ, 2017 WL 11490686, at *5 (D. Ariz. July 31, 2017) (“The Pima County Sheriff's Department is not a proper defendant because it is a non-jural entity under Arizona state law.”) (punctuation modified). This defendant should be dismissed.
Zuniga concedes that the case law holds that the Maricopa County Sheriff's Department (MCSD) is a non-jural entity, but he argues that “a thorough examination of the relevant statutes and case law specific to Pima County” could show that the PCSD is different. Doc. 17, p. 3. Zuniga, however, does not direct the court to any statutes or case law indicating that the PCSD enjoys a different legal status than does the MCSD. In the absence of any contrary authority, the court finds that the two should be treated the same.
Also, the defendants argue that Pima County should be dismissed because none of Zuniga's claims assert liability against that defendant. Doc. 14, p. 4. The court does not entirely agree. The defendants are correct in their assertion that Title VII claims impose liability only against the employer and there is no vicarious liability for a claim under section 1983. The defendants recognize, however, that a section 1983 claim can be asserted against Pima County if a custom or official policy caused harm to the plaintiff. Id.
In the body of the Complaint, Zuniga asserts that Pima County refused to investigate his “formal complaint” of workplace discrimination. Doc. 1, ¶ 13, 20. Instead, it transferred his complaint to the Sheriff's Department “despite the clear conflict of interest” and failed to notify him of the results of any further investigation. Doc. 1, ¶¶ 13, 20, 21. Zuniga further claims that the defendants' actions constitute a Fourteenth Amendment property interest due process violation pursuant to 42 U.S.C. § 1983. Doc. 1, p. 5. It appears that Zuniga has asserted a custom or policy claim against Pima County for its handling of his workplace discrimination complaint. See also Ortez v. Washington Cnty., State of Or., 88 F.3d 804, 807 (9th Cir. 1996) (“Because Ortez is a pro se litigant, we must construe liberally his inartful pleading . . . .”).
Finally, the defendants argue that the “claim for punitive damages should also be dismissed with prejudice because they are not awardable against Sheriff Nanos in his official capacity under A.R.S. § 12-920.04, i.e., public entity.” Doc 14, p. 4. The court agrees but only to a point. While punitive damages might not be awarded against Sheriff Nanos in his official capacity, the plaintiff's section 1983 claims are directed against the individual defendants in their personal capacity. And punitive damages could be awarded for those claims. Rolfe v. State of Ariz., 578 F.Supp. 1467, 1472 (D. Ariz. 1983) (“[Punitive] damages may be awarded under § 1983 even though the claimed constitutional violation also involves a Title VII claim.”).
RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review of the record, enter an order GRANTING IN PART the pending motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), filed by the defendants on July 1, 2024. Doc. 14. The defendant Pima County Sheriffs' Department (PCSD) should be dismissed from this action.
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within 14 days of being served with a copy of this report and recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without the permission of the District Court.