Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 1 of 20
MIDP,OPTCON,PROTO,STD
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:18−cv−02684−EJM

Briggs et al v. Montgomery et al Assigned to: Magistrate Judge Eric J Markovich Cause: 42:1983 Civil Rights Act
Plaintiff
Deshawn Briggs on behalf of themselves and all others similarly situated

Date Filed: 08/23/2018 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Akeeb Dami Animashaun Civil Rights Corps 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 202−656−5189 Email: dami@civilrightscorps.org TERMINATED: 11/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Imeime Aniefiok Umana Civil Rights Corps 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 717−350−8776 Fax: 202−609−8030 Email: imeime10@gmail.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua David R Bendor Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Email: jbendor@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Chamblee−Ryan Civil Rights Corps 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 202−656−5189 Email: katie@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olevia Boykin Civil Rights Corps 1601 Connecticut Ave. NW, Ste. 800 Washington, DC 20009 202−656−5189 Fax: 202−609−8030 Email: olevia@civilrightscorps.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan Downer Civil Rights Corps 1601 Connecticut Ave. NW, Ste. 800

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 2 of 20

Washington, DC 20009 202−894−6146 Fax: 202−609−8030 Email: ryan@civilrightscorps.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah MacDougall Covington & Burling LLP − New York, NY New York Times Building 620 8th Ave. New York, NY 10018−1405 212−841−1215 Email: smacdougall@cov.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stanley Young Covington & Burling LLP − Palo Alto, CA 5 Palo Alto Sq. Palo Alto, CA 94306 650−632−4704 Fax: 650−632−4804 Email: syoung@cov.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy Joel Eckstein Osborn Maledon PA P.O. Box 36379 Phoenix, AZ 85067−6379 602−640−9000 Fax: 602−640−9050 Email: teckstein@omlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Virginia Williamson Covington & Burling LLP − Washington, DC 1 City Center 850 10th St. NW Washington, DC 20001−4596 202−662−5983 Email: vwilliamson@cov.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Mark Pascale on behalf of themselves and all others similarly situated

represented by Akeeb Dami Animashaun (See above for address) TERMINATED: 11/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Imeime Aniefiok Umana (See above for address) LEAD ATTORNEY

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 3 of 20

PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Chamblee−Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olevia Boykin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan Downer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Sarah MacDougall (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Stanley Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Timothy Joel Eckstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Virginia Williamson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Taja Collier TERMINATED: 02/10/2020

represented by Akeeb Dami Animashaun (See above for address) TERMINATED: 11/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Chamblee−Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 4 of 20

Olevia Boykin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Joel Eckstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
McKenna Stephens TERMINATED: 02/10/2020

represented by Akeeb Dami Animashaun (See above for address) TERMINATED: 11/07/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Chamblee−Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olevia Boykin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy Joel Eckstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Lucia Soria

represented by Imeime Aniefiok Umana (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Joshua David R Bendor (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine Chamblee−Ryan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Olevia Boykin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ryan Downer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 5 of 20

Sarah MacDougall (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Stanley Young (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Timothy Joel Eckstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Virginia Williamson (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Akeeb Dami Animashaun (See above for address) TERMINATED: 11/07/2019 ATTORNEY TO BE NOTICED

V.
Defendant
William Montgomery in his official capacity as County Attorney of Maricopa County TERMINATED: 10/10/2019

represented by Ann Thompson Uglietta Maricopa County Attorneys Office − Civil Services Division 222 N Central Ave., Ste. 1100 Phoenix, AZ 85004 602−506−8581 Email: uglietta@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Gail Lockerby Maricopa County Attorneys Office − Civil Services Division 222 N Central Ave., Ste. 1100 Phoenix, AZ 85004 602−506−8541 Fax: 602−506−2181 Email: lockerbj@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph James Branco Maricopa County Attorneys Office − Phoenix (Central Ave.) 222 N Central Ave., Ste 1100 Phoenix, AZ 85004−2206 602−506−8541 Fax: 602−506−8567 Email: brancoj@mcao.maricopa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 6 of 20

Defendant Maricopa, County of
Defendant Treatment Assessment Screening Center Incorporated
Defendant Allister Adel Maricopa County Attorney

represented by Ann Thompson Uglietta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Gail Lockerby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph James Branco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kelly Ann Kszywienski Snell & Wilmer LLP − Phoenix, AZ 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−2202 602−382−6384 Email: kkszywienski@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Arthur Henry Snell & Wilmer LLP − Phoenix, AZ 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−2202 602−382−6259 Fax: 602−382−6070 Email: bhenry@swlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Zoe Weaver Snell & Wilmer LLP − Phoenix, AZ 1 Arizona Center 400 E Van Buren Phoenix, AZ 85004−2202 602−382−6535 Email: aweaver@swlaw.com ATTORNEY TO BE NOTICED
represented by Ann Thompson Uglietta (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Gail Lockerby (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph James Branco (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 7 of 20

Date Filed 08/23/2018 08/23/2018 08/23/2018 08/24/2018 08/24/2018
08/24/2018 08/28/2018 08/28/2018 08/28/2018 08/29/2018
08/31/2018

# Docket Text
1 COMPLAINT. Filing fee received: $ 400.00, receipt number 0970−15879611 filed by Deshawn Briggs, Taja Collier, Mark Pascale. (Bendor, Joshua) (Attachments: # 1 Civil Cover Sheet)(KEP) (Entered: 08/24/2018)
2 SUMMONS Submitted by Deshawn Briggs, Taja Collier, Mark Pascale. (Bendor, Joshua) (Attachments: # 1 Summons, # 2 Summons)(KEP) (Entered: 08/24/2018)
3 Filing fee paid, receipt number 0970−15879611. This case has been assigned to the Honorable James A. Teilborg. All future pleadings or documents should bear the correct case number: CV−18−2684−PHX−JAT. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (KEP) (Entered: 08/24/2018)
4 Summons Issued as to Maricopa, County of, William Montgomery, Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Summons, # 2 Summons)(KEP). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 08/24/2018)
5 NOTICE TO THE PARTIES − The Court is participating in the Mandatory Initial Discovery Pilot (MIDP) and this case is subject to that pilot. The key features and deadlines are set forth in the attached Notice which includes General Order 17−08. Also attached is a checklist for use by the parties. All parties must respond to the mandatory initial discovery requests set forth in the General Order before initiating any further discovery in this case. Please note: The discovery obligations in the General Order supersede the disclosures required by Rule 26(a)(1). Any party seeking affirmative relief must serve a copy of the attached documents (Notice to Parties, including General Order 17−08 and MIDP Checklist) on each new party when the Complaint, Counterclaim, Crossclaim, or Third−Party Complaint is served. (KEP) (Entered: 08/24/2018)
6 ORDER: This matter is reassigned to the Honorable Steven P. Logan, United States District Judge. All future pleadings and papers submitted for filing shall bear the following complete case number: CV−18−02684−PHX−SPL. Signed by Senior Judge James A Teilborg on 8/24/2018. (REK) (Entered: 08/24/2018)
7 SERVICE EXECUTED filed by Deshawn Briggs, Taja Collier, Mark Pascale: Affidavit of Service re: Summons, Class Action Complaint and Jury Trial Demand, Notice to Parties − Mandatory Initial Discovery Pilot Project, Notice of Availability of United States Magistrate Judge upon Treatment Assessment Screening Center, Inc. on August 24, 2018. (Bendor, Joshua) (Entered: 08/28/2018)
8 SERVICE EXECUTED filed by Deshawn Briggs, Taja Collier, Mark Pascale: Affidavit of Service re: Summons, Class Action Complaint and Jury Trial Demand, Notice to Parties − Mandatory Initial Discovery Pilot Project, Notice of Availability of United States Magistrate Judge upon Maricopa County on August 24, 2018. (Bendor, Joshua) (Entered: 08/28/2018)
9 SERVICE EXECUTED filed by Deshawn Briggs, Taja Collier, Mark Pascale: Affidavit of Service re: Summons, Class Action Complaint and Jury Trial Demand, Notice to Parties − Mandatory Initial Discovery Pilot Project, Notice of Availability of United States Magistrate Judge upon William Montgomery as the Maricopa County Attorney on August 24, 2018. (Bendor, Joshua) (Entered: 08/28/2018)
10 PRELIMINARY ORDER − Plaintiff(s) must promptly serve a copy of this Order and its Attachments on Defendant(s) and file notice of service with the Clerk of Court. In accordance with the MIDP General Order, Defendant(s) must file a responsive pleading (an answer, counterclaim, crossclaim, and/or reply) within the time set forth in Federal Rule of Civil Procedure 12, irrespective of whether Defendant(s) intend to file a preliminary motion. (See document for further details). Signed by Judge Steven P Logan on 8/28/18. (Attachments: # 1 Notice to Parties − Mandatory Initial Discovery Pilot Project)(LAD) (Entered: 08/29/2018)
11 *STIPULATION for Extension of Time to Answer Complaint re: 1 Complaint (First Request) by William Montgomery, Maricopa, County of. (Attachments: # 1 Text of

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 8 of 20

09/04/2018
09/07/2018 09/07/2018 09/12/2018 09/13/2018 09/18/2018 09/21/2018 10/03/2018 10/04/2018
10/12/2018 10/12/2018 10/12/2018 10/17/2018

Proposed Order)(Uglietta, Ann) *Modified to correct event and add additional filer on 9/4/2018 (REK). (Entered: 08/31/2018)
12 ORDER granting a one−time extension for Defendants to answer the complaint. The parties' obligations to produce the information called for in the MIDP will be triggered by Defendants' response to the complaint after the extension. The parties should be aware that the filing of a motion to dismiss under Rule 12(b)(6) will not postpone the time for compliance with the MIDP. General Order 17−08 provides that compliance may be deferred only for motions to dismiss based on lack of subject−matter jurisdiction, lack of personal jurisdiction, sovereign immunity, or absolute or qualified immunity of a public official. Defendants William Montgomery and Maricopa County'stime to respond to the complaint is extended to 10/5/2018. No further extensions will be granted. See order for additional details. Signed by Judge Steven P Logan on 9/4/2018. (LMR) (Entered: 09/04/2018)
13 Corporate Disclosure Statement by Treatment Assessment Screening Center Incorporated. (Kszywienski, Kelly) (Entered: 09/07/2018)
14 *MOTION for Extension of Time to File Answer by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Text of Proposed Order)(Kszywienski, Kelly) *Modified to correct motion type on 9/10/2018 (REK). (Entered: 09/07/2018)
Remark: Pro hac vice motion granted for Katherine Chamblee−Ryan on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/12/2018)
15 ORDER granting 14 Motion for Extension of Time to Answer. Treatment Assessment Screening Center Incorporated answer due 10/5/2018. Signed by Judge Steven P Logan on 9/13/2018. (TCA) (Entered: 09/13/2018)
16 *NOTICE re: Plaintiffs' Notice of Service of 10 Preliminary Order by Deshawn Briggs, Taja Collier, Mark Pascale . (Bendor, Joshua) *Modified to add document link on 9/19/2018 (REK). (Entered: 09/18/2018)
Remark: Pro hac vice motion granted for Akeeb Dami Animashaun on behalf of plaintiffs. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/21/2018)
17 Joint MOTION Re: Amended Complaint and Related Deadlines by Deshawn Briggs, Taja Collier, Mark Pascale. (Attachments: # 1 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 10/03/2018)
18 ORDER granting the parties' Joint Motion Regarding Amended Complaint andRelated Deadlines 17 . Plaintiffs shall file their Amended Complaint by 10/12/2018. Defendants shall file their responsive pleadings by 11/9/2018. Motion. Plaintiffs shall file their responses to Defendants' motions by 12/7/2018. Defendants shall file their replies in support of their motions by 12/21/2018. See order for additional details. Signed by Judge Steven P Logan on 10/4/2018. (LMR) (Entered: 10/04/2018)
19 MINUTE ORDER: This case is reassigned to Judge James A. Soto. All future filings shall reflect the following case number: CV−18−2684−PHX−JAS. All deadlines and hearings are AFFIRMED unless reset by separate order. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (CLB) (Entered: 10/12/2018)
20 AMENDED COMPLAINT against All Defendants filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens.(Chamblee−Ryan, Katherine) (Entered: 10/12/2018)
21 NOTICE of Filing Amended Pleading pursuant to LRCiv 15.1(b) by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens . (Attachments: # 1 Appendix Redlined Copy of First Amended Class Action Complaint)(Chamblee−Ryan, Katherine) (Entered: 10/12/2018)
22 (VACATED BY ORDER 68 ) ORDER, to avoid the appearance of impropriety by the Court or the parties and to preserve a proper record in the event of any appeal, all communication with the Court shall occur via a written motion filed into the official docket. The parties shall not contact the Court's staff (i.e., Law Clerks or the Judicial

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 9 of 20

11/05/2018 11/09/2018 11/09/2018
11/09/2018 11/09/2018 11/09/2018 11/09/2018
11/09/2018 11/15/2018 11/15/2018 11/20/2018 11/20/2018 11/20/2018 11/20/2018

Assistant) telephonically or by e−mail to ask questions or express concerns regarding cases pending before the Court, and the Court has directed its staff not to entertain any such informal communication. Plaintiffs shall serve a copy of this Order on Defendants at the same time they serve the Summons and Complaint. Signed by Judge James A Soto on 10/17/2018. (See attached Order for details)(KEP) Modified on 1/9/2019 (KEP). (Entered: 10/17/2018)
23 NOTICE of Appearance by Joseph James Branco on behalf of Maricopa, County of, William Montgomery. (Branco, Joseph) (Entered: 11/05/2018)
24 MOTION for Leave to File COMBINED MOTION TO DISMISS IN EXCESS OF PAGE LIMITATION by Maricopa, County of, William Montgomery. (Attachments: # 1 Text of Proposed Order)(Uglietta, Ann) *Modified to remove duplicative text on 11/13/2018 (DXD). (Entered: 11/09/2018)
25 (FILED AT DOC 34 )−LODGED Proposed MOTION TO DISMISS re: 24 MOTION for Leave to File COMBINED MOTION TO DISMISS IN EXCESS OF PAGE LIMITATION. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, William Montgomery. (Attachments: # 1 Exhibit)(Uglietta, Ann) *Modified text/linkage on 11/13/2018 (DXD). Modified on 11/20/2018 (BAR). (Entered: 11/09/2018)
26 COMBINED MOTION FOR JUDICIAL NOTICE by Maricopa, County of, William Montgomery. (Attachments: # 1 Text of Proposed Order)(Uglietta, Ann) *Modified text on 11/13/2018 (DXD). (Entered: 11/09/2018)
27 MOTION for Extension of Time FOR FILING RESPONSIVE PLEADINGS PER MIDP ORDER [DOC. 5] AND PRELIMINARY ORDER [DOC. 10] by Maricopa, County of, William Montgomery. (Attachments: # 1 Text of Proposed Order)(Uglietta, Ann) *Modified text on 11/13/2018 (DXD). (Entered: 11/09/2018)
28 MOTION for Leave to File Excess Pages for Motion to Dismiss by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Text of Proposed Order)(Kszywienski, Kelly) *Modified text on 11/13/2018 (DXD). (Entered: 11/09/2018)
29 (FILED AT DOC [36)− LODGED Proposed Motion to Dismiss re: 28 MOTION for Leave to File Excess Pages . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit 1−8)(Kszywienski, Kelly) Modified on 11/20/2018 (BAR). (Entered: 11/09/2018)
30 MOTION to Defer Filing of Defendant TASC's Responsive Pleading by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Text of Proposed Order)(Kszywienski, Kelly) (Entered: 11/09/2018)
31 NOTICE re: Compliance by Treatment Assessment Screening Center Incorporated . (Kszywienski, Kelly) (Entered: 11/15/2018)
32 NOTICE re: NOTICE OF COMPLIANCE REGARDING DEFENDANTS MARICOPA COUNTY AND MARICOPA COUNTY ATTORNEY WILLIAM MONTGOMERYS MOTION TO DISMISS AND CONCURRENT MOTIONS by Maricopa, County of, William Montgomery . (Branco, Joseph) (Entered: 11/15/2018)
33 ORDER granting 24 Motion for Leave to File Combined Motion to Dismiss in Excess of Page Limitation by Maricopa, County of, William Montgomery. Signed by Judge James A Soto on 11/19/2018. (BAR) (Entered: 11/20/2018)
34 MOTION to Dismiss Per Rule 12(b) and Rule 12(b)(6) and Defendants Joinder in Parts IV and V of Defendant Treatment Assessment Screening Center, Inc.'s Motion to Dismiss by Maricopa, County of, William Montgomery. (Attachments: # 1 Exhibit)(BAR) (Entered: 11/20/2018)
35 ORDER granting 28 Motion for Leave to File Excess Pages for Motion to Dismiss. Signed by Judge James A Soto on 11/19/2018. (BAR) (Entered: 11/20/2018)
36 MOTION to Dismiss Case by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit)(BAR) (Entered: 11/20/2018)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 10 of 20

12/07/2018 12/07/2018
12/07/2018 12/07/2018
12/07/2018
12/11/2018 12/11/2018 12/11/2018 12/11/2018 12/17/2018
12/17/2018 12/17/2018 12/19/2018 12/21/2018

37 MOTION for Leave to File Excess Pages for Plaintiffs' Brief in Opposition to Defendant TASC's Motion to Dismiss by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 12/07/2018)
38 Filed at Doc. 43 −−LODGED Proposed Plaintiffs' Brief in Opposition to Defendant TASC's Motion to Dismiss re: 37 MOTION for Leave to File Excess Pages for Plaintiffs' Brief in Opposition to Defendant TASC's Motion to Dismiss . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Chamblee−Ryan, Katherine) Modified on 12/11/2018 (MFR). (Entered: 12/07/2018)
39 MOTION for Leave to File Excess Pages for Plaintiffs' Brief in Opposition to Defendants Maricopa County and Montgomery's Motion to Dismiss by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 12/07/2018)
40 Filed at Doc. 45 −−LODGED Proposed Plaintiffs' Brief in Opposition to Defendants Maricopa County and Montgomery's Motion to Dismiss re: 39 MOTION for Leave to File Excess Pages for Plaintiffs' Brief in Opposition to Defendants Maricopa County and Montgomery's Motion to Dismiss . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Exhibit)(Chamblee−Ryan, Katherine) Modified on 12/11/2018 (MFR). (Entered: 12/07/2018)
41 RESPONSE in Opposition re: 27 MOTION for Extension of Time FOR FILING RESPONSIVE PLEADINGS PER MIDP ORDER [DOC. 5] AND PRELIMINARY ORDER [DOC. 10], 30 MOTION to Defer Filing of Defendant TASC's Responsive Pleading filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 12/07/2018)
42 ORDER RE: PLAINTIFFS' UNOPPOSED MOTION TO EXCEED PAGE LIMITATION granting 37 Motion for Leave to File Excess Pages. Signed by Judge James A Soto on 12/10/2018. (MFR) (Entered: 12/11/2018)
43 RESPONSE to Motion re: 36 MOTION to Dismiss Case filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (MFR) (Entered: 12/11/2018)
44 ORDER RE: PLAINTIFFS' UNOPPOSED MOTION TO EXCEED PAGE LIMITATION granting 39 Motion for Leave to File Excess Pages. Signed by Judge James A Soto on 12/10/2018. (MFR) (Entered: 12/11/2018)
45 RESPONSE in Opposition re: 34 MOTION to Dismiss Case filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Exhibit 1)(MFR) (Entered: 12/11/2018)
46 MOTION for Extension of Time DEFENDANTS UNOPPOSED JOINT MOTION FOR EXTENSION OF TIME TO SERVE AUTHORITIES BINDERS FOR THEIR REPLIES IN SUPPORT OF THEIR MOTIONS TO DISMISS AND MOTIONS TO DEFER RESPONSIVE PLEADINGS by Maricopa, County of, William Montgomery. (Attachments: # 1 Text of Proposed Order)(Uglietta, Ann) (Entered: 12/17/2018)
47 NOTICE re: Notice of Compliance by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens . (Bendor, Joshua) (Entered: 12/17/2018)
48 ORDER granting 46 Motion for Extension of Time Deadline. Signed by Judge James A Soto on 12/17/18.(JAS, kr) (Entered: 12/17/2018)
49 MOTION to Amend/Correct 43 Response to Motion to Dismiss by Defendant TASC by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Exhibit Corrected Brief, # 2 Exhibit Redline of Corrected Brief, # 3 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 12/19/2018)
50 ORDER granting 49 Plaintiffs' Unopposed Motion to File Corrected Brief in Opposition to Defendant Treatment Assessment Screening Center, Inc.'s Motion to Dismiss. Signed by Judge James A Soto on 12/20/2018. (KEP) (Entered: 12/21/2018)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 11 of 20

12/21/2018
12/21/2018
12/21/2018 12/21/2018 12/21/2018 12/21/2018 12/26/2018 12/26/2018 12/26/2018
12/26/2018

51 MOTION for Leave to File DEFENDANTS MARICOPA COUNTYS AND MARICOPA COUNTY ATTORNEYS MOTION FOR LEAVE TO FILE THEIR COMBINED REPLY IN SUPPORT OF THEIR COMBINED MOTION TO DISMISS AND THEIR JOINDER IN PARTS II AND III OF DEFENDANT TREATMENT ASSESSMENT SCREENING CENTER, INC.S REPLY IN SUPPORT OF ITS MOTION TO DISMISS IN EXCESS OF PAGE LIMITATION by Maricopa, County of, William Montgomery. (Attachments: # 1 Text of Proposed Order)(Uglietta, Ann) (Entered: 12/21/2018)
52 (FILED AT DOC 60 ) LODGED Proposed DEFENDANTS MARICOPA COUNTY AND MARICOPA COUNTY ATTORNEY MONTGOMERYS COMBINED REPLY IN SUPPORT OF THEIR COMBINED MOTION TO DISMISS PER RULES 12(b)(1) AND 12(b)(6), FED.R.CIV.P. AND DEFENDANTS MARICOPA COUNTY AND MARICOPA COUNTY ATTORNEY MONTGOMERYS JOINDER IN PARTS II AND III OF DEFENDANT TREATMENT ASSESSMENT SCREENING CENTER, INC.S REPLY IN SUPPORT OF ITS MOTION TO DISMISS [DOCS. 34, 36], re: 51 MOTION for Leave to File. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Maricopa, County of, William Montgomery. (Attachments: # 1 Exhibit)(Uglietta, Ann) *Modified to add linkage on 12/26/2018 (EJA). Modified on 12/26/2018 (KEP). (Entered: 12/21/2018)
53 *REPLY DEFENDANTS MARICOPA COUNTY AND MARICOPA COUNTY ATTORNEYS COMBINED REPLY IN SUPPORT OF THEIR COMBINED MOTION TO DEFER TIME FOR FILING RESPONSIVE PLEADINGS PER MIDP ORDER [DOC. 5] AND PRELIMINARY ORDER [DOC. 10] [DOC. 27 ] by Defendants Maricopa, County of, William Montgomery. (Attachments: # 1 Exhibit)(Uglietta, Ann) *Modified to add linkage on 12/26/2018 (EJA). (Entered: 12/21/2018)
54 MOTION for Leave to File Excess Pages for Reply in Support of Motion to Dismiss by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Text of Proposed Order)(Kszywienski, Kelly) (Entered: 12/21/2018)
55 (FILED AT DOC 58 ) LODGED Proposed Reply in Support of Motion to Dismiss re: 54 MOTION for Leave to File Excess Pages for Reply in Support of Motion to Dismiss . Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Treatment Assessment Screening Center Incorporated. (Kszywienski, Kelly) Modified on 12/26/2018 (KEP). (Entered: 12/21/2018)
56 REPLY to Response to Motion re: 30 MOTION to Defer Filing of Defendant TASC's Responsive Pleading filed by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit Exhibits 1−2)(Kszywienski, Kelly) (Entered: 12/21/2018)
57 ORDER granting 54 Motion for Leave to File Excess Pages. The Clerk of the Court shall file TASCs Lodged Proposed Reply (Doc. 55 ).Signed by Judge James A Soto on 12/26/2018. (KEP) (Entered: 12/26/2018)
58 Defendant Treatment Assessment Screening Center Inc.'s REPLY to Response to Motion re: 36 MOTION to Dismiss Case filed by Treatment Assessment Screening Center Incorporated. (KEP) (Entered: 12/26/2018)
59 ORDER granting 51 Defendants Maricopa County's and Maricopa County Attorney's Motion for Leave to File Their Combined Reply in Support of Their Combined Motion to Dismiss and Their Joinder In Parts II and III of Defendant Treatment Assessment Screening Center, Inc.'s Reply in Support of Its Motion to Dismiss in Excess of Presumptive Page Limitation. The Clerk shall accept for filing Defendant Maricopa County and Maricopa County Attorney's Combined Reply In Support of Their Combined Motion to Dismiss Per Rule 12(b)(6) and Rule 12(b)(1), Fed. R. Civ. P. and their Joinder in Parts II and III of Defendant Treatment Assessment Screening Center, Inc.'s Reply in Support of Its Motion to Dismiss. Signed by Judge James A Soto on 12/26/2018. (KEP) (Entered: 12/26/2018)
60 Defendant Maricopa County and Maricopa County Attorney's Combined REPLY to Response to Motion re: 34 MOTION to Dismiss Case filed by Maricopa, County of, William Montgomery and their Joinder in Parts II and III of Defendant Treatment Assessment Screening Center, Inc.'s Doc 58 Reply in Support of Its Motion to Dismiss (Doc 36 ). (Attachments: # 1 Exhibit)(KEP) (Entered: 12/26/2018)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 12 of 20

01/03/2019 01/04/2019 01/07/2019 01/07/2019
01/07/2019
01/09/2019 01/09/2019 01/09/2019 01/09/2019 01/11/2019 01/11/2019
01/18/2019 01/22/2019

61 NOTICE re: of Compliance by Maricopa, County of, William Montgomery re: 60 Reply to Response to Motion to Dismiss and Concurrent Motions. (Branco, Joseph) (Entered: 01/03/2019)
62 NOTICE re: Compliance by Treatment Assessment Screening Center Incorporated . (Kszywienski, Kelly) (Entered: 01/04/2019)
63 MOTION for Leave to File Sur−Replies in Opposition to Defendants' Motions to Dismiss by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 01/07/2019)
64 *Denied per Order 79 * LODGED Proposed Sur−Reply in Opposition to Defendants Maricopa County and Montgomery's Motion to Dismiss re: 63 MOTION for Leave to File Sur−Replies in Opposition to Defendants' Motions to Dismiss. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Chamblee−Ryan, Katherine) Modified on 5/22/2019 (DXD). (Entered: 01/07/2019)
65 *Denied per Order 79 * LODGED Proposed Sur−Reply in Opposition Defendant TASC's Motion to Dismiss re: 63 MOTION for Leave to File Sur−Replies in Opposition to Defendants' Motions to Dismiss. Document to be filed by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Chamblee−Ryan, Katherine) *Modified to add linkage on 1/8/2019 (EJA). Modified on 5/22/2019 (DXD). (Entered: 01/07/2019)
66 ORDER the Clerk of the Court shall file the corrected brief appearingat Doc. 49 −1. Signed by Judge James A Soto on 1/8/2019. (KEP) (Entered: 01/09/2019)
67 RESPONSE to Motion re: 36 MOTION to Dismiss by Defendant TASC filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Chamblee−Ryan, Katherine) (KEP) (Entered: 01/09/2019)
68 ORDER this case be randomly reassigned by the Clerk of the Court. As this case will be reassigned to another Judge, this Court's 10/17/18 case management Order appearing at Doc. 22 is vacated. This case has been randomly reassigned to Judge Eric. J. Markovich. The case number will read: CV 18−2684−PHX−EJM. Signed by Judge James A Soto on 1/9/2019. (KEP) (Entered: 01/09/2019)
69 NOTICE: This case has been assigned to the Honorable Eric J. Markovich. All future pleadings or documents should bear the correct case number: CV−18−2684−PHX−EJM. Magistrate Election form attached. (KEP) (Entered: 01/09/2019)
70 RESPONSE to Motion re: 63 MOTION for Leave to File Sur−Replies in Opposition to Defendants' Motions to Dismiss filed by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit)(Henry, Robert) (Entered: 01/11/2019)
71 RESPONSE in Opposition re: 63 MOTION for Leave to File Sur−Replies in Opposition to Defendants' Motions to Dismiss [DEFENDANTS MARICOPA COUNTYS AND MARICOPA COUNTY ATTORNEYS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE SUR−REPLIES IN OPPOSITION TO DEFENDANTS MARICOPA COUNTY AND COUNTY ATTORNEY MONTGOMERYS MOTION TO DISMISS AND DEFENDANT TASCS MOTION TO DISMISS [DOC. 63]] filed by Maricopa, County of, William Montgomery. (Uglietta, Ann) (Entered: 01/11/2019)
72 REPLY to Response to Motion re: 63 MOTION for Leave to File Sur−Replies in Opposition to Defendants' Motions to Dismiss filed by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Chamblee−Ryan, Katherine) (Entered: 01/18/2019)
76 Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAC) (Entered: 01/25/2019)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 13 of 20

01/23/2019 01/23/2019 03/19/2019
04/10/2019 05/21/2019 05/22/2019

77 Agreement to Magistrate Judge Jurisdiction. Party agrees to Magistrate Judge Jurisdiction. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAC) (Entered: 01/25/2019)
78 Minute Order: In accordance with 28 USC 636(c), all parties have voluntarily consented to have Magistrate Judge Eric J Markovich conduct all further proceedings in this case, including trial and entry of final judgment, and conduct all post−judgment proceedings, with direct review by the Ninth Circuit Court of Appeals, if an appeal is filed. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAC) (Entered: 01/25/2019)
79 ORDER GRANTING Defendants' Combined Motion for Judicial Notice. (Doc. 26 ). GRANTING Defendants Maricopa County and Maricopa County Attorney William G. Montgomery's Combined Motion to Defer Time for Filing Responsive Pleadings Per MIDP Order. (Doc. 27 ). GRANTING Defendant Treatment Assessment Screening Center, Inc.'s Motion to Defer Filing of Defendant TASC's Responsive Pleading. (Doc. 30 ). DENYING Plaintiff's Motion for Leave to File Sur−Replies (Doc. 63 ). Signed by Magistrate Judge Eric J Markovich on 3/15/2019. (See attached Order for details) (KEP) (Entered: 03/19/2019)
80 ORDERED that a Hearing is set re: 34 MOTION to Dismiss Case, 36 MOTION to Dismiss Case. Oral Arguments on the aforementioned motions shall be held on Wednesday, May 22, 2019 at 9:30 a.m. in Courtroom 3A, 405 West Congress Street, Tucson, AZ 85701 before Magistrate Judge Eric J Markovich. Signed by Magistrate Judge Eric J Markovich on 4/10/2019. (ARC) (Entered: 04/10/2019)
81 NOTICE re: NOTICE OF WITHRDAWAL by Maricopa, County of, William Montgomery [DEFENDANTS MARICOPA COUNTYS AND MARICOPA COUNTY ATTORNEYS NOTICE OF WITHRDAWAL OF ARGUMENT SET FORTH AT THEIR MOTION TO DISMISS, PART 111.C, ABSOLUTE PROSECUTORIAL IMMUNITY]. (Branco, Joseph) (Entered: 05/21/2019)
82 MINUTE ENTRY for proceedings held before Magistrate Judge Eric J Markovich: Motion Hearing held on 5/22/2019. Oral Argument held. Motions Taken Under Advisement: 36 MOTION to Dismiss Case, 34 MOTION to Dismiss Case.

05/23/2019 05/29/2019 05/29/2019
05/29/2019 05/30/2019

APPEARANCES: Akeeb Dami Animashaun & Katherine Chamblee−Ryan for Plaintiffs Briggs, et al. Ann Thompson Uglietta & Joseph James Branco for Defendant Montgomery & Maricopa County, Kelly Ann Kszywienski & Robert Arthur Henry for Defendant Treatment Assessment Screening Center Incorporated. (Recorded by COURTSMART.) Hearing held 9:36 AM −10:57 AM (part 1) 11:03 AM − 12:24 PM (part 2) This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (ARS) (Entered: 05/23/2019)
83 TRANSCRIPT REQUEST by Hon Eric Markovich for proceedings held on 5/22/2019, Magistrate Judge Eric J Markovich hearing judge(s). (CSM) (Entered: 05/23/2019)
84 TRANSCRIPT REQUEST by Maricopa, County of, William Montgomery for proceedings held on 05/22/2019, Magistrate Judge Eric J Markovich hearing judge(s). (Branco, Joseph) (Entered: 05/29/2019)
85 NOTICE TO FILER OF DEFICIENCY re: AO 435 Item 18 − ORDER: (CATEGORY) A box under ORIGINAL + 1 was incorrectly checked. The original has been previously ordered. FOLLOW−UP ACTION REQUIRED: Please refile with the appropriate box checked under FIRST COPY. Deficiency must be corrected within one business day of this notice. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (CSM) (Entered: 05/29/2019)
86 AMENDED TRANSCRIPT REQUEST pursuant to 85 Notice of Deficiency by Maricopa, County of, William Montgomery for proceedings held on 05/22/2019, Magistrate Judge Eric J Markovich hearing judge(s). (Branco, Joseph) (Entered: 05/29/2019)
87 TRANSCRIPT of MOTION HEARING held on 05/22/2019, before Judge Eric J. Markovich. Transcriber Candy L. Potter. The ordering party will have electronic access to the transcript immediately. All others may view the transcript at the court public terminal or it may be purchased through the Transcriber by filing a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction.

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 14 of 20

05/30/2019 06/18/2019 07/02/2019 07/02/2019 07/08/2019
08/01/2019 08/01/2019 08/01/2019 08/02/2019 08/13/2019 08/16/2019 08/21/2019
08/28/2019

After that date it may be obtained through PACER. Redaction Request due 6/20/2019. Redacted Transcript Deadline set for 7/1/2019. Release of Transcript Restriction set for 8/28/2019. (CSM) (Entered: 05/30/2019)
88 TRANSCRIPT REQUEST by Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens for proceedings held on 05/22/2019, Magistrate Judge Eric J Markovich hearing judge(s). (Animashaun, Akeeb) (Entered: 05/30/2019)
89 ORDER denying 34 Motion to Dismiss; denying 36 Motion to Dismiss. Defendants shall file their responsive pleadings within fourteen (14) days of the date of this order. Fed. R. Civ. P. 12(a)(4); see (Doc. 79). Signed by Magistrate Judge Eric J Markovich on 6/18/2019. (See attached Order for details) (KEP) (Entered: 06/18/2019)
90 Defendants Maricopa County's and Maricopa County Attorney's Answer to First Amended Class Action Complaint and Jury Trial Demand ANSWER to 20 Amended Complaint with Jury Demand by Maricopa, County of, William Montgomery.(Uglietta, Ann) (Entered: 07/02/2019)
91 ANSWER to 20 Amended Complaint with Jury Demand by Treatment Assessment Screening Center Incorporated.(Kszywienski, Kelly) (Entered: 07/02/2019)
92 ORDER a telephonic Scheduling Conference will be held in the above entitled action on Tuesday, August 20, 2019 at 3:30 p.m., before United States Magistrate Judge Markovich's law clerk. The conference call shall be initiated by Plaintiff's Attorney, by calling the above number with all of the parties on the line. The parties shall file with the Court, on or before August 13, 2019, a joint report reflecting the results of their conference. Signed by Magistrate Judge Eric J Markovich on 7/8/2019. (See attached Order for details) (KEP) (Entered: 07/08/2019)
93 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendants Maricopa, County of, William Montgomery. (Branco, Joseph) (Entered: 08/01/2019)
94 NOTICE of Appearance by Amanda Zoe Weaver on behalf of Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 08/01/2019)
95 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendant Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 08/01/2019)
96 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Plaintiffs Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Animashaun, Akeeb) (Entered: 08/02/2019)
97 Rule 26(f) Report for Mandatory Initial Discovery Pilot (MIDP) filed by Plaintiffs Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. (Attachments: # 1 Text of Proposed Order (PLAINTIFFS), # 2 Text of Proposed Order (DEFENDANTS))(Animashaun, Akeeb) (Entered: 08/13/2019)
Remark: Pro hac vice motion(s) granted for Olevia Boykin on behalf of Plaintiffs Deshawn Briggs, Taja Collier, Mark Pascale, McKenna Stephens. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 08/16/2019)
98 ORDER a telephonic Scheduling Conference will be held in the above entitled action on Tuesday, September 10, 2019 at 11:30 a.m., before United States Magistrate Judge Markovich's law clerk. Counsel are directed to meet and confer prior to the conference scheduled herein and shall file with the Court, on or before September 4, 2019, a joint report reflecting the results of their conference. Signed by Magistrate Judge Eric J Markovich on 8/21/2019. (See attached Order for details) (KEP) (Entered: 08/21/2019)
99 *MOTION to Amend/Correct Complaint filed by Deshawn Briggs, McKenna Stephens, Taja Collier, Mark Pascale, Lucia Soria. (Attachments: # 1 Exhibit Proposed SAC, # 2 Exhibit Proposed SAC w/ Redlines, # 3 Text of Proposed Order)(Animashaun, Akeeb) *Modified on 8/29/2019 to correct event type (MSA). (Entered: 08/28/2019)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 15 of 20

09/04/2019 09/10/2019 09/11/2019 09/11/2019 09/11/2019 09/11/2019 09/12/2019
09/12/2019 09/18/2019 09/23/2019 09/23/2019 09/30/2019 10/03/2019 10/07/2019 10/07/2019 10/10/2019

100 Rule 26(f) Report for Mandatory Initial Discovery Pilot (MIDP) filed by Plaintiffs Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Animashaun, Akeeb) (Entered: 09/04/2019)
101 *NOTICE of Service of Supplemental Mandatory Initial Discovery Responses by Maricopa, County of, William Montgomery . (Uglietta, Ann) *Modified on 9/11/2019 to correct event type for management and statistical purposes (MSA). (Entered: 09/10/2019)
102 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Plaintiffs Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Animashaun, Akeeb) (Entered: 09/11/2019)
103 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendant Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 09/11/2019)
104 RESPONSE to Motion re: 99 MOTION to Amend/Correct filed by Maricopa, County of, William Montgomery. (Uglietta, Ann) (Entered: 09/11/2019)
105 RESPONSE to Motion re: 99 MOTION to Amend/Correct filed by Treatment Assessment Screening Center Incorporated. (Kszywienski, Kelly) (Entered: 09/11/2019)
106 SCHEDULING ORDER: Counsel shall submit to the Court a brief Joint Settlement Status Report on December 10, 2019 and every forty−five (45) days thereafter. All fact discovery shall be completed by January 24, 2020. Dispositive motions shall be filed on or before June 15, 2020. Once the Class Certification Phase is complete, the Court will set another Case Management Conference to set deadlines for the merits phase of discovery. Signed by Magistrate Judge Eric J Markovich on 9/11/2019. (KEP) (Entered: 09/12/2019)
107 NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendants Maricopa, County of, William Montgomery. (Uglietta, Ann) (Entered: 09/12/2019)
108 REPLY to Response to Motion re: 99 MOTION to Amend/Correct filed by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Attachments: # 1 Exhibit)(Animashaun, Akeeb) (Entered: 09/18/2019)
109 ORDER granting 99 Plaintiffs' Motion to Amend/Correct. The Clerk shall file and docket Plaintiffs Second Amended Complaint. (Doc. 99−1). Signed by Magistrate Judge Eric J Markovich on 9/20/2019. (KEP) (Entered: 09/23/2019)
110 SECOND AMENDED COMPLAINT against Maricopa, County of, William Montgomery, Treatment Assessment Screening Center Incorporated filed by McKenna Stephens, Taja Collier, Mark Pascale, Lucia Soria, Deshawn Briggs. (KEP) (Entered: 09/23/2019)
111 *STIPULATION for Entry of Protective Order by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 HIPAA Qualified and General Protective Order)(Kszywienski, Kelly) *Modified to correct event on 10/1/2019 (RMV). (Entered: 09/30/2019)
112 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Olevia Boykin. (Boykin, Olevia) (Entered: 10/03/2019)
113 MOTION for Extension of Time to File Answer re: 110 Amended Complaint [and Extension of Time to file their Jury Trial Demand Re: Second Amended Complaint] by Maricopa, County of, William Montgomery. (Attachments: # 1 Text of Proposed Order)(Uglietta, Ann) (Entered: 10/07/2019)
114 ANSWER to 110 Amended Complaint with Jury Demand Second Amended Class Action Complaint and Jury Trial Demand by Treatment Assessment Screening Center Incorporated.(Weaver, Amanda) (Entered: 10/07/2019)
115 NOTICE re: Notice of Substitution of Allister Adel as Successor for William G. Montgomery by Maricopa, County of, William Montgomery . (Uglietta, Ann)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 16 of 20

10/10/2019
10/10/2019
10/11/2019 10/16/2019 10/16/2019 10/17/2019 10/17/2019 10/25/2019 11/07/2019 11/07/2019 11/21/2019 11/22/2019
11/27/2019 12/02/2019 12/06/2019

(Entered: 10/10/2019)
116 HIPAA QUALIFIED AND GENERAL PROTECTIVE ORDER granting 111 Stipulation by the Parties for Protective Order. IT IS HEREBY ORDERED that the following procedures govern the production and use of information and documents subject to this order in this action. Signed by Magistrate Judge Eric J Markovich on 10/9/2019. (See attached Order for details) (KEP) (Entered: 10/10/2019)
117 ORDER granting 113 Parties' Stipulated Motion for Extension of Time to File Defendants Maricopa Countys and Maricopa County Attorneys Answer to Second Amended Complaint and Extension of Time to File their Jury Trial Demand Re: Second Amended Complaint (First Request). Defendants Maricopa County and Maricopa County Attorney shall Answer or otherwise respond to Plaintiffs Second Amended Complaint (Doc. 110) on or before October 11, 2019. Signed by Magistrate Judge Eric J Markovich on 10/9/2019. (KEP) (Entered: 10/10/2019)
118 ANSWER to 110 Amended Complaint with Jury Demand by Maricopa, County of, William Montgomery.(Uglietta, Ann) (Entered: 10/11/2019)
119 NOTICE of Service of Discovery filed by Maricopa, County of, William Montgomery. (Uglietta, Ann) (Entered: 10/16/2019)
120 NOTICE of Service of Discovery filed by Maricopa, County of, William Montgomery. (Uglietta, Ann) (Entered: 10/16/2019)
121 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendants Maricopa, County of, William Montgomery. (Uglietta, Ann) (Entered: 10/17/2019)
122 NOTICE of Service of Discovery filed by Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 10/17/2019)
123 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendant Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 10/25/2019)
124 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Plaintiffs Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Boykin, Olevia) (Entered: 11/07/2019)
125 *NOTICE of Attorney Withdrawal by Akeeb Dami Animashaun. (Animashaun, Akeeb) *Modified to correct event type on 11/8/2019 (EJA). (Entered: 11/07/2019)
126 Joint MOTION for Extension of Time to Complete Discovery (First Request) by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Boykin, Olevia) (Entered: 11/21/2019)
127 ORDER granting 126 the parties Joint Motion to Amend Scheduling Order toExtend the Close of Class Discovery and Adjust Other Case Management Deadlines. The new deadlines are set as follows: Disclosure of lay witnesses: February 20, 2020; Disclosure of anticipated areas of affirmative expert testimony: March 19, 2020; Close of fact discovery: April 23, 2020; Affirmative expert reports: May 7, 2020; Rebuttal expert reports: June 16, 2020; Expert depositions: July 16, 2020; Motion for class certification: July 30, 2020; Response to Motion for class certification: September 3, 2020; Dispositive motions: September 18, 2020; and Reply in support of motion for class certification: September 30, 2020. Signed by Magistrate Judge Eric J Markovich on 11/21/19. (MYE) (Entered: 11/22/2019)
128 NOTICE of Service of Discovery filed by Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 11/27/2019)
129 * NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) Second Supplemental filed by Defendant Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) * Modified to correct event; attorney noticed on 12/3/2019 (LAD). (Entered: 12/02/2019)
130 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) [NOTICE OF SERVICE OF DEFENDANTS MARICOPA COUNTY AND MARICOPA COUNTY ATTORNEY ALLISTER ADELS THIRD SUPPLEMENTAL RESPONSES TO

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 17 of 20

12/10/2019 12/10/2019 12/13/2019 01/24/2020 01/24/2020 01/28/2020 01/31/2020 02/03/2020 02/10/2020
02/14/2020
02/19/2020 02/20/2020
02/26/2020

MANDATORY INITIAL DISCOVERY] filed by Defendants Maricopa, County of, William Montgomery. (Branco, Joseph) (Entered: 12/06/2019)
131 REPORT of Settlement Talks/Discussions by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Chamblee−Ryan, Katherine) (Entered: 12/10/2019)
132 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) Third Supplemental filed by Plaintiffs Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Boykin, Olevia) (Entered: 12/10/2019)
133 NOTICE of Service of Discovery filed by Maricopa, County of, William Montgomery. (Uglietta, Ann) (Entered: 12/13/2019)
134 REPORT of Settlement Talks/Discussions by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Boykin, Olevia) (Entered: 01/24/2020)
Remark: Pro hac vice motion(s) granted for Imeime Aniefiok Umana on behalf of Plaintiffs Deshawn Briggs, Mark Pascale and Lucia Soria. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 01/24/2020)
135 STATEMENT of Noting the Death of Plaintiff Mark Pascale by Defendant Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit A−B)(Kszywienski, Kelly) (Entered: 01/28/2020)
136 * NOTICE of Service of Responses to Mandatory Initial Discovery (MIDP) filed by Defendants Maricopa, County of, Allister Adel. (Branco, Joseph) * Modified to correct filers on 2/3/2020 (LAD). (Entered: 01/31/2020)
137 STIPULATION of Dismissal of Plaintiffs Taja Collier and McKenna Stephens by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Chamblee−Ryan, Katherine) (Entered: 02/03/2020)
138 ORDER pursuant to 137 Stipulation of Dismissal: IT IS ORDERED GRANTING the parties' stipulation. Plaintiffs Stephens and Collier are dismissed with prejudice from this lawsuit and Count III of the Second Amended Complaint is dismissed with prejudice. This Court further orders that each party shall bear their own costs and attorneys' fees in connection with Plaintiff Stephens and Collier's claims. Signed by Magistrate Judge Eric J Markovich on 2/7/20.(BAC) (Entered: 02/10/2020)
139 * MOTION to Compel Defendant TASC's Production of MDPP Program Files by Deshawn Briggs, Mark Pascale, Lucia Soria. (Attachments: # 1 Rule 37.1 Statement, # 2 Text of Proposed Order Proposed Order, # 3 Exhibit Exhibit A (Plaintiffs' First Requests for Production), # 4 Exhibit Exhibit B (Briggs Program File), # 5 Exhibit Exhibit C (Soria Program File), # 6 Exhibit Exhibit D (TASC Violation Letter), # 7 Exhibit Exhibit E (TASC's Response to Plaintiffs' First Requests for Production), # 8 Exhibit Exhibit F (Plaintiffs' First Deficiency Letter), # 9 Exhibit Exhibit G (Jan. 28, 2020 Email), # 10 Exhibit Exhibit H (July 16, 2018 Email), # 11 Exhibit Exhibit I (TASC's Third Supplemental MIDP Written Responses), # 12 Exhibit Exhibit J (June 30, 2017 TASC Financial Statements))(Chamblee−Ryan, Katherine) *Modified to correct filers on 2/18/2020 (WLP). (Entered: 02/14/2020)
140 Joint MOTION for Extension of Time to Complete Discovery for Class Certification by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 02/19/2020)
141 ORDER granting the 140 Joint Motion to Extend the Close of Class Discovery and Adjust Other Case Management Deadlines Accordingly. The dates and deadlines set forth in the Court's Order granting the first request to extend class discovery deadlines, Doc. 127, are vacated. Dispositive motions are due December 18, 2020. Signed by Magistrate Judge Eric J Markovich on 02/20/20. (SEE ATTACHED ORDER FOR COMPLETE DETAILS.) (MYE) (Entered: 02/20/2020)
142 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendants Allister Adel, Maricopa, County of. (Uglietta, Ann) (Entered: 02/26/2020)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 18 of 20

02/28/2020 03/06/2020 03/06/2020
03/09/2020 03/09/2020 03/13/2020 03/25/2020 03/27/2020 03/31/2020 04/01/2020 04/13/2020 04/14/2020 04/20/2020 04/23/2020 04/24/2020 04/27/2020

143 RESPONSE to Motion re: 139 MOTION to Compel Defendant TASC's Production of MDPP Program Files filed by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit 1 − 8)(Kszywienski, Kelly) (Entered: 02/28/2020)
Remark: Pro hac vice motion(s) granted for Stanley Young on behalf of Plaintiffs Deshawn Briggs, Mark Pascale, and Lucia Soria. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/06/2020)
144 REPLY to Response to Motion re: 139 MOTION to Compel Defendant TASC's Production of MDPP Program Files filed by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Attachments: # 1 Exhibit K, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit N, # 5 Exhibit O, # 6 Exhibit P, # 7 Exhibit Q, # 8 Exhibit R, # 9 Exhibit S, # 10 Exhibit T, # 11 Exhibit U, # 12 Exhibit V, # 13 Exhibit W, # 14 Exhibit X)(Chamblee−Ryan, Katherine) (Entered: 03/06/2020)
Remark: Pro hac vice motion(s) granted for Sarah MacDougall on behalf of Plaintiffs Deshawn Briggs, Mark Pascale, and Lucia Soria. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/09/2020)
145 REPORT of Settlement Talks/Discussions by Deshawn Briggs, Mark Pascale, Lucia Soria. (Boykin, Olevia) (Entered: 03/09/2020)
Remark: Pro hac vice motion(s) granted for Virginia Williamson on behalf of Plaintiffs Deshawn Briggs, Mark Pascale, Lucia Soria, and McKenna Stephens. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/13/2020)
146 *NOTICE of Service of Discovery filed by Deshawn Briggs (Chamblee−Ryan, Katherine) *Modified to correct filers on 3/26/2020 (WLP). (Entered: 03/25/2020)
147 NOTICE re: OF INTENT TO SERVE SUBPOENA by Deshawn Briggs, Mark Pascale, Lucia Soria . (Attachments: # 1 Subpoena to SAGE Counseling, Inc.)(Bendor, Joshua) (Entered: 03/27/2020)
Remark: Pro hac vice motion(s) granted for Ryan Downer on behalf of Plaintiffs Deshawn Briggs, Mark Pascale, and Lucia Soria. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 03/31/2020)
148 *MOTION for Supplemental Briefing re: 139 Motion to Compel by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit, # 2 Text of Proposed Order)(Kszywienski, Kelly) *Modified to add document linkage on 4/2/2020 (WLP). (Entered: 04/01/2020)
149 MOTION for Extension of Time to File Response/Reply as to 148 MOTION for Supplemental Briefing by Deshawn Briggs, Taja Collier, Mark Pascale, Lucia Soria, McKenna Stephens. (Attachments: # 1 Text of Proposed Order)(Chamblee−Ryan, Katherine) (Entered: 04/13/2020)
150 ORDERED that Plaintiffs' Unopposed Motion for Extension of Time is GRANTED. (Doc. 149 ). Plaintiffs shall file their response on or before April 20,2020. Signed by Magistrate Judge Eric J Markovich on 04/14/20. (MYE) (Entered: 04/14/2020)
151 RESPONSE to Motion re: 148 MOTION for Supplemental Briefing re applicability of 42 U.S.C Section 290dd−2 to TASC Program Files filed by Deshawn Briggs, Mark Pascale, Lucia Soria. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(MacDougall, Sarah) (Entered: 04/20/2020)
152 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) filed by Defendants Allister Adel, Maricopa, County of. (Uglietta, Ann) (Entered: 04/23/2020)
153 NOTICE of Service of Discovery filed by Treatment Assessment Screening Center Incorporated. (Kszywienski, Kelly) (Entered: 04/24/2020)
154 REPLY to Response to Motion re: 148 MOTION for Supplemental Briefing filed by Treatment Assessment Screening Center Incorporated. (Attachments: # 1 Exhibit D−E)(Kszywienski, Kelly) (Entered: 04/27/2020)

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 19 of 20

04/27/2020 04/28/2020 04/28/2020 05/05/2020
05/11/2020 05/11/2020 05/18/2020 05/18/2020 05/20/2020 05/20/2020 05/21/2020
06/01/2020 06/01/2020 06/01/2020

155 MOTION to Substitute Party: substituting Antonio Pascale in place of Mark Pascale by Deshawn Briggs, Mark Pascale, Lucia Soria. (Attachments: # 1 Exhibit 1 (Order Appointing Antonio Pascale), # 2 Notice of Hearing Pursuant FCRP 25(a)(3), # 3 Text of Proposed Order)(Boykin, Olevia) (Entered: 04/27/2020)
156 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) Third Supplemental filed by Defendant Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 04/28/2020)
157 NOTICE of Service of Supplemental Mandatory Initial Discovery Responses (MIDP) Fourth Supplemental filed by Defendant Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 04/28/2020)
158 ORDER granting Defendant TASC's Motion for Supplemental Briefing 148 . TASC shall submit its opening brief by Monday, May 18, 2020 to address the applicability of the Public Health Service Act to the MDPP participants' program files and shall address the four issues noted. Pursuant to Local Rule of Civil Procedure 7.2, Plaintiffs' Response shall be due within fourteen (14) days after service of TASC's motion. TASC may file a Reply within seven (7) days after service of Plaintiffs' response. Signed by Magistrate Judge Eric J Markovich on 5/5/20. (See attached Order for complete details.) (MYE) (Entered: 05/05/2020)
159 RESPONSE in Opposition re: 155 MOTION to Substitute Party: substituting Antonio Pascale in place of Mark Pascale filed by Allister Adel, Maricopa, County of. (Attachments: # 1 Exhibit)(Uglietta, Ann) (Entered: 05/11/2020)
160 RESPONSE to Motion re: 155 MOTION to Substitute Party: substituting Antonio Pascale in place of Mark Pascale filed by Treatment Assessment Screening Center Incorporated. (Weaver, Amanda) (Entered: 05/11/2020)
161 REPLY to Response to Motion re: 155 MOTION to Substitute Party: substituting Antonio Pascale in place of Mark Pascale filed by Deshawn Briggs, Mark Pascale, Lucia Soria. (Umana, Imeime) (Entered: 05/18/2020)
162 SUPPLEMENTAL BRIEF on 139 Motion to Compel by Treatment Assessment Screening Center Incorporated . (Attachments: # 1 Exhibit 1−5, # 2 Exhibit 6−10, # 3 Exhibit 11−15, # 4 Exhibit 16−20)(Kszywienski, Kelly) *Modified text on 5/19/2020 (WLP). (Entered: 05/18/2020)
163 Joint MOTION for Extension of Time to Complete Discovery (Third Request) by Deshawn Briggs, Mark Pascale, Lucia Soria. (Attachments: # 1 Text of Proposed Order)(Boykin, Olevia) (Entered: 05/20/2020)
164 AMENDED Joint MOTION for Extension of Time to Complete Discovery (Third Request) by Deshawn Briggs, Mark Pascale, Lucia Soria. (Attachments: # 1 Text of Proposed Order)(Boykin, Olevia) (Entered: 05/20/2020)
165 ORDERED granting the Joint Motion to Extend the Close of Class Discovery and Adjust Other Case Management Deadlines Accordingly 164 ; and ORDERING that the current deadline for Dispositive Motions is VACATED. Signed by Magistrate Judge Eric J Markovich on 5/20/20. (See attached Order for complete details.) (MYE) (Entered: 05/21/2020)
166 *Re−filed at 168 RESPONSE re: 162 Brief − Opening −−Plaintiffs' Response to Defendant TASC's Supplemental Brief re 42 U.S.C. § 290dd−2(a) by Plaintiffs Deshawn Briggs, Mark Pascale, Lucia Soria. (MacDougall, Sarah) *Modified on 6/2/2020 (WLP). (Entered: 06/01/2020)
167 NOTICE of Errata re: 166 Response by Plaintiffs Deshawn Briggs, Mark Pascale, Lucia Soria. (MacDougall, Sarah) (Entered: 06/01/2020)
168 RESPONSE re: 162 Brief − Opening −−Plaintiffs' Response to Defendant TASC's Supplemental Brief re 42 U.S.C. Section 290dd−2(a) by Plaintiffs Deshawn Briggs, Mark Pascale, Lucia Soria. (Attachments: # 1 Index of Exhibits, # 2 Affidavit Declaration of K. Chamblee−Ryan, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 15, # 18 Exhibit 16, # 19 Exhibit 17)(MacDougall, Sarah) (Entered:

Case: 2:18-cv-2684 As of: 06/06/2020 05:26 PM MST 20 of 20 06/01/2020)

 
 Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 1 of 39

1 Timothy J. Eckstein, 018321 Joshua D. Bendor, 031908
2 OSBORN MALEDON, P.A. 2929 N. Central Ave., Suite 2100
3 Phoenix, Arizona 85012-2793 (602) 640-9000
4 teckstein@omlaw.com jbendor@omlaw.com
5
A. Dami Animashaun (pro hac vice application to be filed) 6 Katherine Chamblee-Ryan (pro hac vice application to be filed)
CIVIL RIGHTS CORPS 7 910 17th Street NW, Second Floor
Washington, D.C. 20002 8 (202) 656-5189
dami@civilrightscorps.org 9 katie@civilrightscorps.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 Deshawn Briggs and Mark Pascale, on

14

behalf of themselves and all others similarly situated; Taja Collier,

No. ________________

15 16 v.

Plaintiffs,

CLASS ACTION COMPLAINT AND JURY TRIAL DEMAND

17

William Montgomery, in his official capacity as County Attorney of

18

Maricopa County; Maricopa County; Treatment Assessment Screening

19 Center, Inc.,

20

Defendants.

21

OVERVIEW

22

1. The Maricopa County Attorney’s Office (MCAO) and the Treatment

23 Assessment Screening Center (TASC) jointly operate a possession of marijuana

24 diversion program1 that penalizes the poor because of their poverty.

25

26

27 1 This diversion program is referred to in the Complaint as “the possession of

28

marijuana diversion program,” “the marijuana diversion program,” and “the program.”

Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 2 of 39

1

2. In a “diversion” program, participants undergo a period of supervision

2 and must meet certain requirements to avoid criminal prosecution and conviction.

3

3. The programs are generally “a functional equivalent of a sentence to

4 pretrial probation . . . and [are] staffed with paraprofessionals overseeing individuals in

5 what [is] in effect a probationary-type of supervision and control.”2

6

4. In principle, the programs are “intended to relieve overburdened courts

7 and crowded jails, and to spare low-risk offenders from the devastating consequences

8 of a criminal record.”3

9

5. But in Maricopa County, they serve another purpose: to make money for

10 those who operate the program, including the MCAO.4

11

6. Between 2006 and 2016, MCAO collected nearly $15 million in revenue

12 by diverting threatened prosecutions to TASC.5

13

7. The length of time a person spends in the diversion program and whether

14 the person ultimately completes the program and avoids felony criminal prosecution

15 depends on whether she can pay the program’s required fees.

16

17 2 S. Rep. No. 93–1021, at 36–37 (1974) (describing the operation of two pretrial diversion programs).
18 3 Shalia Dewan & Andrew W. Lehren, No Money, No Mercy: After a Crime, the

Price of a Second Chance, N.Y. Times (Dec. 12, 2016), 19 https://www.nytimes.com/2016/12/12/us/crime-criminal-justice-reform-

20 diversion.html. 4 See Megan Cassidy, If Prop. 205 Passes, Maricopa County Attorney’s Office Funds
21 From Marijuana Diversion Program Would Dry Up, Ariz. Republic (Oct. 26, 2016),

22 https://www.azcentral.com/story/news/local/phoenix/2016/10/26/prop-205-marijuanadiversion-tasc-dry-up-county-attorney-bill-montgomery-millions/92795924; Ray

23 Stern, If Prop 205 Passes, the Maricopa County Attorney’s Budget is Likely to Take a

Hit, Phoenix New Times (Oct. 31, 2016), 24 https://www.phoenixnewtimes.com/news/if-prop-205-passes-the-maricopa-county-

25 attorneys-budget-is-likely-to-take-a-hit-8782184; Ray Stern, Potential Marijuana Legalization in Arizona Threatens TASC Drug Treatment Firm’s Funding, Phoenix
26 New Times (Jan. 26, 2016), https://www.phoenixnewtimes.com/news/potential-

27

marijuana-legalization-in-arizona-threatens-tasc-drug-treatment-firms-funding7999610.

28 5 See Cassidy, supra note 4.

2

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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 3 of 39

1

8. In order to complete the program and avoid felony criminal prosecution,

2 participants in the marijuana diversion program must pay a fee of $950 or $1000.

3

9. Participants must also pay $15 or $17 for drug and alcohol tests up to

4 three times each week.

5

10. The program is two-tiered: people who meet program requirements—

6 completing a three-hour drug education seminar and routine drug and alcohol testing—

7 and are wealthy enough to pay the program fees complete the program in 90 days and

8 are no longer subject to felony criminal prosecution.

9

11. But participants who cannot pay the program fees are forced to stay in the

10 program for at least six months or until they can pay off the money owed to MCAO and

11 TASC, even if they have satisfied every program requirement other than payment.

12

12. During the “pay-only”6 period, participants are subject to all of the

13 diversion program’s requirements.

14

13. These requirements include reporting to a TASC location, as often as

15 three times per week, so that the participant’s urine can be collected and tested.

16

14. Participants who remain on diversion solely because of their inability to

17 pay program fees must also continue to pay $15 or $17 each time they are required to

18 submit to a drug and alcohol test.

19

15. The perverse result is that poor people are ultimately charged more

20 money—potentially hundreds of dollars more—than are similarly situated participants

21 who can afford to pay to finish the program in 90 days.

22

23

24 6 “Pay-only” refers to a period of criminal supervision during which the person is

25 supervised only because she has not paid all of her debt. This “extremely muscular form of debt collection,” which “masquerades as supervision,” is becoming

26 increasingly common. Human Rights Watch, Profiting from Probation: America’s

27

‘Offender Funded’ Probation Industry (Feb. 5, 2014), https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-

28 funded-probation-industry.

3

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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 4 of 39

1

16. They also remain subject to felony criminal prosecution during the

2 additional time they are forced to remain in the diversion program.

3

17. In addition, participants are not allowed to complete certain program

4 requirements if they cannot afford to pay for them.

5

18. For example, if a participant cannot pay the $15 or $17 fee for a drug and

6 alcohol test, she is not allowed to take the required test at all.

7

19. Therefore, if a participant reports for a drug and alcohol test without the

8 required fee, she will be turned away and can be referred for felony prosecution for

9 failing to complete a mandatory drug and alcohol test.

10

20. In other words, an unpaid drug and alcohol test is a failed test.

11

21. If a participant misses too many drug and alcohol tests—even if she

12 missed them solely because she could not afford to pay for them—she will be failed out

13 of the diversion program and prosecuted for felony possession of marijuana.

14

22. MCAO and TASC enforce these policies even when they know that

15 diversion participants are poor or even homeless, and even when they know that

16 participants are sacrificing basic necessities to pay fees.

17

23. Diversion participants who alert TASC employees that they cannot afford

18 the required fees are told that they will be failed from the program if they do not pay

19 and to do whatever it takes to get the money.

20

24. For example, Plaintiff Marc Pascale is a 60-year-old man with

21 degenerative disc disease, which has left him physically unable to work.

22

25. TASC refused to waive his program and drug and alcohol testing fees

23 even after he repeatedly told them that he could not afford to pay the fees.

24

26. Mr. Pascale’s case manager repeatedly told him to borrow money to pay

25 the fees or else he would fail the program, lose the money he had already paid in

26 program and drug and alcohol testing fees, and be prosecuted for felony criminal

27 possession of marijuana.

28 4
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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 5 of 39

1

27. Plaintiff Taja Collier emailed her case manager at TASC to tell her that

2 she was homeless and could not afford to pay for drug and alcohol testing.

3

28. Ms. Collier’s case manager responded that if she did not test, she would

4 be issued a notice of violation and her case would be sent back to court, where she

5 would be prosecuted for felony criminal possession of marijuana.

6

29. As a result, Ms. Collier sold her blood plasma to pay for drug and alcohol

7 tests.

8

30. Plaintiffs bring this civil rights action pursuant to 42 U.S.C. § 1983 to

9 redress violations of Named Plaintiffs’, class members’, and Plaintiff Collier’s rights

10 under the Fourth and Fourteenth Amendments of the United States Constitution.

11

31. Named Plaintiffs Deshawn Briggs and Mark Pascale, as well as the class

12 members whose interests they represent, seek monetary damages against Defendants

13 for violation of these rights.

14

32. Plaintiff Taja Collier seeks monetary damages and injunctive relief on her

15 own behalf.

16

PARTIES

17

Plaintiffs

18

33. Plaintiff Deshawn Briggs is a 28-year-old African American man. He is

19 a resident of Maricopa County, Arizona. Mr. Briggs spent six months in Defendants’

20 marijuana diversion program solely because he was unable to pay the program fees

21 within 90 days. He represents himself and a class of similarly situated people subject to

22 Defendants’ unlawful policies, practices, and customs.

23

34. Plaintiff Marc Pascale is a 60-year-old white man. He is a resident of

24 Maricopa County, Arizona. Mr. Pascale spent more than seven months in Defendants’

25 marijuana diversion program solely because he was unable to pay the program fees in

26 90 days. He represents himself and a class of similarly situated people subject to

27 Defendants’ unlawful policies, practices, and customs.

28 5
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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 6 of 39

1

35. Plaintiff Taja Collier is a 21-year-old African American woman. She is

2 a resident of Maricopa County, Arizona. Ms. Collier was willing to meet all diversion

3 requirements, but she could not afford to pay for drug and alcohol testing, particularly

4 during a month when she was homeless and sleeping in parks. After Ms. Collier could

5 not afford to pay for several drug and alcohol tests, she was failed out of the diversion

6 program and was prosecuted for felony possession of marijuana. Ms. Collier was

7 prosecuted for felony marijuana possession and was once again diverted into

8 Defendants’ program. Ms. Collier brings this suit on her own behalf.

9

Defendants

10

36. Defendant Bill Montgomery is the elected County Attorney for

11 Maricopa County, Arizona. Defendant Montgomery is the chief official responsible for

12 the enforcement and prosecution of felonies within Maricopa County. Defendant

13 Montgomery is also responsible for operating and administering the deferred

14 prosecution programs in Maricopa County. Defendant Montgomery is the final

15 policymaker for Maricopa County on matters relating to diversion programs, including

16 the marijuana diversion program at issue in this lawsuit. He is sued in his official

17 capacity.

18

37. Defendant Maricopa County, Arizona7 is a political subdivision formed

19 and designated as such pursuant to Title 11 of the Arizona Revised Statutes. Defendant

20 Maricopa County can sue and be sued in its own name. Maricopa County is liable for

21 the practices and policies of Defendants Montgomery and TASC. The County has and

22 continues to acquiesce in the administration of the TASC drug diversion program,

23 including the marijuana diversion program at issue in this lawsuit.

24

38. Defendant Treatment Assessment Screening Center (“TASC”) is a

25 private, non-profit, 501(c)(3) corporation headquartered in Phoenix, Arizona.

26
27 7 Defendant Montgomery, in his official capacity, acts on behalf of and is the final policymaker for Maricopa County with respect to the conduct described in this
28 lawsuit. If this is correct, naming Maricopa County as a defendant is redundant. 6
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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 7 of 39

1 Defendant TASC has contracted and continues to contract with MCAO to operate,

2 administer, and supervise the marijuana diversion program at issue in this lawsuit.

3 Defendant TASC supervises all people whose prosecutions for simple possession of

4 marijuana have been diverted. Defendant TASC acts under the color of law in its

5 administration and supervision of the County’s marijuana diversion program.

6

JURISDICTION

7

39. This action arises under 42 U.S.C. § 1983 and the Constitution of the

8 United States. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and

9 1343.

10

40. Venue is proper under 28 U.S.C. § 1391(b). All Defendants’ official

11 places of business are located within this District. The events giving rise to the claims

12 occurred in this District.

13

STATEMENT OF FACTS

14 I. Defendants’ Unlawful Policies

15

Marijuana Possession Prosecutions in Maricopa County

16

41. In Arizona, possession of any amount of marijuana—even trace

17 amounts—can be prosecuted as a felony.8

18

42. Defendant County Attorney Bill Montgomery has aggressively opposed

19 legalization measures as well as efforts to reduce simple possession of marijuana to a

20 misdemeanor.

21

22

23

24 8 See Ariz. Rev. Stat. Ann. § 13-3405(B)(1) (providing that possession of “an amount

25 of marijuana not possessed for sale having a weight of less than two pounds is guilty of a class 6 felony”). Arizona is the only state in the nation where any amount of

26 marijuana, no matter how small, can draw a felony charge. See Jacon Sullum,

27

Explaining His Cannabis Conversion, John Boehner Cites a Marijuana Myth, Reason (Apr. 12, 2018), http://reason.com/blog/2018/04/12/explaining-his-cannabis-

28 conversion-john/print.

7

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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 8 of 39

1

43. In 2016, Defendant Montgomery successfully advocated against the

2 passage of Proposition 205, a ballot initiative that would have made recreational

3 marijuana use legal in Arizona.

4

44. Defendant Montgomery made numerous public statements and

5 participated in public debates attacking the initiative and advocating for its failure.

6

45. During a public debate on marijuana legalization, Defendant

7 Montgomery told a Vietnam veteran, who admitted to using medical marijuana for back

8 pain and occasional recreation use, “I have no respect for you. … [Y]ou’re an enemy.”

9

46. Defendant Montgomery has also worked to narrow Arizona’s medical

10 marijuana laws.

11

47. For example, when Defendant Montgomery learned that doctors were

12 able to stop a five-year-old’s seizures by using a marijuana extract, he threatened the

13 child’s parents with felony prosecution, arguing that extracts were not covered by the

14 state’s medical marijuana allowance.9

15

48. Drug possession charges represent an overwhelming proportion of the

16 charges filed by MCAO.

17

49. Possession of marijuana is the MCAO’s most commonly prosecuted

18 offense; it amounts to approximately 15 percent of total prosecutions.10

19

50. And more broadly, more than 45 percent of MCAO’s prosecutions are for

20 drug possession.11

21

22

23 9 Evan Wyloge, Court Rules Medical Marijuana Patients Can Use Extracts, Ariz.

Capitol Times (Mar. 22, 2014), https://azcapitoltimes.com/news/2014/03/22/az24 medical-marijuana-patients-can-use-cannabis-extract-court-rules-bill-montgomery.

25 10 See Maricopa County Attorney’s Office, 2016 Annual Report, at 43, available at https://www.maricopacountyattorney.org/ArchiveCenter/View-File/Item/88.

26 The year 2016 is the most recent for which MCAO has published this charging

27

data. 11 Id. (calculated by adding the percentage of the total offenses charged represented

28 by each type of drug charge listed).

8

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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 9 of 39

1

51. Between 2006 and 2016, MCAO made nearly $15 million from diverting

2 threatened prosecutions to TASC.12

3

The Possession of Marijuana Diversion Program

4

52. For most people who are arrested in Maricopa County for simple

5 possession of marijuana, the only way to avoid a felony criminal prosecution is to

6 complete the diversion program offered by MCAO.

7

53. To operate, administer, and supervise participants in the program, MCAO

8 has contracted with TASC, a private non-profit company.

9

54. More than 15,000 people participated in MCAO and TASC’s marijuana

10 diversion program between 2011 and 2017.13

11

55. Over that same time period, the marijuana diversion program accounted

12 for approximately three quarters of TASC’s total intakes for drug diversion.14

13

56. People arrested for simple possession of marijuana or marijuana

14 paraphernalia can enter the diversion program either before or after criminal charges

15 are filed.

16

57. People who enter into the marijuana diversion program post-filing have

17 charges filed against them prior to enrolling in the program.

18

58. The charges are suspended while the person completes the program.

19

59. If the person successfully completes the program, MCAO dismisses the

20 case.

21

22

23 12 Cassidy, supra note 4. 13 See id. (providing the number of participants who enrolled in the program between
24 2011 and 2015); Letter from Bill Montgomery, County Attorney, Maricopa County,
25 to Elizabeth Ortiz, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council (Aug. 8, 2017) (providing the number of participants who enrolled in the
26 program from July 1, 2016 through June 30, 2017). 27 14 See Cassidy, supra note 4; Letter from Bill Montgomery, County Attorney,
Maricopa County, to Elizabeth Ortiz, Executive Director, Arizona Prosecuting
28 Attorneys’ Advisory Council (Aug. 8, 2017). 9
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Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 10 of 39

1

60. If the person fails to complete the program, MCAO reinstates

2 prosecution.

3

61. People can also enter the program before any criminal charges are filed

4 in court.

5

62. People who enter the marijuana diversion program pre-filing are sent a

6 letter from MCAO.

7

63. The letter informs the person that she is facing class 6 felony charges and

8 offers two options: criminal prosecution or the TASC marijuana diversion program.

9

64. The letter warns, “If convicted of a class 6 felony, you could receive a

10 maximum sentence of 2 years in prison and a maximum fine of $150,000 plus 80%

11 surcharge.”

12

65. The letter also warns that a class 1 misdemeanor conviction could result

13 in “a maximum sentence of six months in jail and a maximum fine of $2,500.00 plus

14 80% surcharge.”

15

66. The threats in this letter are false.

16

67. Under Arizona law, jail or prison time is prohibited for a first or second

17 offense of simple possession of marijuana.

18

68. Instead, for people in this category, the law requires drug treatment and a

19 maximum penalty of probation. See Ariz. Rev. Stat. § 13-901.01(A), (D), (H)(1).

20

69. The pre-filing diversion program generally only includes people with no

21 prior convictions.

22

70. Accordingly, the vast majority of people who receive the pre-filing letter

23 threatening jail time are ineligible to be jailed as a matter of state law.

24

71. The letter’s representation that its recipients could be fined $150,000 plus

25 an 80% surcharge are false as well.15

26
27 15 A person convicted of possession of marijuana can be fined $750 or three times the value of the marijuana involved. See Ariz. Rev. Stat. § 13-3405(D). $150,000 is the
28 maximum fine allowable for any felony. See Ariz. Rev. Stat. § 13-801(a). No person 10
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1

72. After delivering these false threats, the letter explains the basic

2 requirements of the marijuana diversion program and provides a deadline and contact

3 information to sign up for the program.

4

73. If a person in the pre-filing category completes the diversion program,

5 MCAO will not file charges against her.

6

74. Failing the program results in criminal prosecution.16

7

75. Participants who do not complete the diversion program and whose cases

8 are prosecuted have little hope of avoiding felony criminal prosecution and conviction

9 because people who enroll in the marijuana diversion program—whether pre- or post-

10 filing—are first required to sign a statement admitting their guilt.

11

76. A TASC employee tells participants exactly what to write in the statement

12 of facts.

13

77. The following information must be written into the statement:

14

a. Date and location of the offense;

15

b. The full name of the substance possessed;

16

c. That the participant possessed a usable amount of the substance; and

17

d. The facts of the offense, which must read, “the [name of the drug] was

18

found in [where the drug was found] in my possession.”

19

78. This signed statement of facts can be used against a person if she fails to

20 complete the marijuana diversion program and is criminally prosecuted. See State v.

21 Gill, 391 P.3d 1193, 1197 (Ariz. 2017) (holding that a written admission contained in

22 a statement of facts obtained by a TASC representative was admissible at trial).

23

24 accused of a crime involving $150,000 worth of marijuana would be eligible for

25 TASC. 16 When a person in the pre-filing group fails diversion, the prosecutor will file

26 charges in the case. When a person in the post-filing group fails diversion, the

27

prosecutor will move to reinstate the prosecution. As a matter of policy, practice, and custom, for both pre- and post-filing participants, TASC sends the participant a final

28 warning letter before the participant is failed from the program.

11

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1

The Cost of Avoiding Prosecution

2

79. Once enrolled in the marijuana diversion program, the requirements for

3 the pre- and post-filing participants are the same.

4

80. For both groups of participants, avoiding prosecution costs money.

5

81. To complete the program, all participants must:

6

a. Pay program fees—$950 or $1000—in full;

7

b. Pay for and pass routine drug and alcohol tests for 90 days; and

8

c. Complete a three-hour drug education seminar.

9

82. The mandatory $950 or $1000 program fee includes:

10

a. A $150 admission fee;

11

b. A $650 “drug fund” fee;

12

c. A $150 TASC fee; and

13

d. A $50 booking fee, which applies only to participants who were

14

arrested and booked.

15

83. All of these fees must be paid in person by debit card or with a money

16 order.

17

84. Participants are not allowed to pay by any other means, including with

18 credit or cash.

19

85. Defendants require that participants pay the $150 admission fee at the

20 program orientation.

21

86. If a participant is unable to pay the $150 admission fee at orientation

22 because she cannot afford it, Defendants allow her to pay $75 at orientation and the

23 other $75 during the program.

24

87. If a participant is allowed to attend orientation without making a payment

25 up front, she may be told to return with the money the same day or be failed from the

26 program and face felony prosecution.

27

28 12
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1

88. In addition to the $950 or $1000 in fees, participants must pay to take

2 drug and alcohol tests at TASC.

3

89. Each drug and alcohol test costs $15 or $17, depending on the method of

4 payment.

5

90. Participants are called to drug test at least once—and often multiple

6 times—each week.

7

91. Records obtained as part of the preliminary investigation for this lawsuit

8 revealed that participants may be required to test as many as nine times per month.

9

92. Thus, on top of the $1000 in program fees, diversion participants pay at

10 least $60—but up to $153—each month for drug and alcohol tests.

11

93. Participants who complete the three program requirements—including

12 full payment of fees—within 90 days are deemed to have successfully completed the

13 program and are no longer subject to felony criminal prosecution.

14

94. However, as a matter of policy, practice, and custom, people who cannot

15 afford to pay the program fees in full within 90 days are not released from the

16 program—even if they meet program requirements and have never tested positive for

17 marijuana (or any other drug, including alcohol).

18

95. Instead, participants who cannot afford to pay these fees must remain in

19 the supervision program for a minimum of six months.

20

96. If these participants are not able to pay the program fees by the end of six

21 months, they must remain in the program until they do.

22

97. Defendants do not assess a person’s ability to pay before refusing to

23 consider her for program completion after 90 days solely because she has not finished

24 paying the required fees.

25

98. Nor do Defendants assess a person’s ability to pay before they require her

26 to remain on diversion until all fees are paid.

27

28 13
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1

99. People who are forced to stay on diversion solely because they cannot

2 afford to pay program fees must continue to submit to one or more drug and alcohol

3 tests weekly—under the threat of criminal prosecution.

4

100. The stalls in which participants submit urine for drug alcohol testing

5 frequently include glass panels so that a TASC employee can watch participants while

6 they urinate.

7

101. In at least one TASC location, the bathroom where participants submit

8 urine for testing includes multiple mirrors so that a TASC employee can watch the

9 participant urinate from multiple angles.

10

102. Participants who remain on diversion solely because they could not pay

11 to complete the program must also complete all of the requirements attendant to the

12 drug and alcohol tests.

13

103. For example, these participants must call TASC every day—or consult a

14 phone application—seven days a week, to determine whether they are required to report

15 to a TASC location during a certain time period that day so that TASC can collect and

16 test their urine.

17

104. If a participant does not call daily, this can be counted as a missed drug

18 and alcohol test and she can be sanctioned, which could potentially result in felony

19 prosecution.

20

105. Participants are also not permitted to drink “excessive amounts of fluids,”

21 since doing so can dilute a urine sample.

22

106. People who remain on diversion because they cannot afford to pay

23 program fees are also still forced to pay $15 or $17 for each drug and alcohol test.

24

107. As a result, these participants may ultimately have to pay hundreds of

25 dollars more than people wealthy enough to pay the $950 or $1000 program fee within

26 90 days—in addition to remaining subject to felony criminal prosecution for months

27 longer.

28 14
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1

Defendants’ Refusal to Waive Fees for the Poor

2

108. As a matter of policy, practice, and custom, Defendants do not reduce or

3 waive the $950 or $1000 program fee for any person, regardless of financial

4 circumstances.

5

109. Defendants contend that they allow for reductions of drug and alcohol

6 testing fees to $7 instead of $15 per test for participants who cannot afford them—but

7 these reductions are almost never granted in practice.

8

110. At the outset, Defendants do not assess participants’ ability to pay before

9 charging them in full for tests.

10

111. But even when Defendants are aware that a participant is indigent and

11 unable to pay without sacrificing basic necessities, Defendants require the participant

12 to pay the full $15 or $17 to test.

13

112. One TASC employee interviewed by investigators for undersigned

14 counsel stated that reduced drug and alcohol testing fees are reserved for people who

15 can demonstrate that they have basically zero income.

16

113. Another TASC employee explained that fee reductions are “very

17 difficult” to get and that “it rarely happens.”

18

114. As one TASC employee explained, drug and alcohol testing is “strictly

19 fee for service.”

20

115. When participants tell TASC case managers that they are struggling to

21 pay, the case managers recommend they borrow money from friends or family because

22 they will be failed from the program and prosecuted if they do not pay.

23

Defendants Do Not Allow Participants to Take Drug and Alcohol Tests

24

Unless They Pay for Them

25

116. As a matter of policy, practice, and custom, Defendants do not allow

26 diversion participants to take the program’s mandatory drug and alcohol tests unless

27 they can pay for them at the time of the test.

28 15
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1

117. As a result, poor people are forced to extend their time on the program

2 for failing to take mandatory drug and alcohol tests—solely because they could not

3 afford to pay for them.

4

118. People who cannot afford to take drug and alcohol tests may also fail the

5 program altogether.

6

119. Missed drug and alcohol tests are counted as “violations”—even when a

7 person only missed the test because she could not afford to pay for it.

8

120. A person who accrues too many of these violations will be failed by

9 TASC and referred to the MCAO for prosecution.

10

121. When this happens, a person faces felony prosecution solely because of

11 her inability to pay.

12

122. No one at TASC assesses a person’s ability to pay before referring her for

13 prosecution because she did not pay for drug and alcohol tests.

14

123. Nor does anyone at MCAO assess ability to pay before prosecuting

15 people who have failed diversion solely because of their inability to pay for drug and

16 alcohol tests.

17

The “User-Funded” Model

18

124. Defendants MCAO and TASC advertise the diversion program as “user-

19 funded.”

20

125. According to MCAO, “user-funded” means that “the [person entering the

21 program] typically bears the costs of the initial assessment and the assigned treatment.”

22

126. A brochure published by MCAO describing its felony pretrial diversion

23 programs notes that “defendants … bear the costs of the program.”17

24

127. Defendant TASC’s website explains that the diversion program “is fully

25 funded by the clients we serve.”18

26

27

17 Maricopa County Attorney’s Office, Felony Pretrial Intervention Program (2018). 18 Diversion, TASC, http://www.tascsolutions.org/tasc-services/diversion (last visited

28 Aug. 22, 2018).

16

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1

128. Defendant TASC is responsible for collecting fees from the people

2 enrolled in the diversion program.

3

129. Defendant TASC keeps a portion of the money it collects.

4

130. The $650 “drug fund fee” that Defendant TASC collects from each

5 participant is deposited to MCAO.

6

131. MCAO does not publicly disclose how it spends the money it receives

7 from the program.

8

132. In addition to collecting fees, the Contract between Defendants MCAO

9 and TASC makes Defendant TASC responsible for most of the day-to-day operations

10 of the possession of marijuana diversion program.

11

133. This includes administering drug and alcohol tests, tracking participants’

12 attendance and participation, and determining whether a participant has completed the

13 program requirements.

14

134. MCAO’s duties under the Contract are to assess the appropriateness of

15 referrals to the program and to send qualified participants to Defendant TASC.

16

135. The Contract does not require the MCAO to pay Defendant TASC any

17 money.

18

136. Instead, the Contract provides that the program’s participants alone will

19 pay Defendant TASC, and “no public monies will be expended pursuant to [the

20 Contract].”19

21

137. The Contract does provide that, “[a]t his option, the County Attorney may

22 utilize monies accumulated in the Drug Diversion Fund to satisfy the costs associated

23 with this agreement if the participant is indigent and unable to pay the costs associated

24 with the … diversion program.”20

25

26
27 19 MCAO & TASC, Behavior Specific Adult Diversion Program Contract, at 1 (Mar. 22, 2016, effective through Sept. 30, 2018).
28 20 Id. 17
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1

138. But there is no requirement that MCAO make such payments. 21

2

139. Between 2006 and 2016, MCAO made nearly $15 million in fees from

3 participants in the marijuana diversion program.22

4

140. Defendant TASC has also benefited financially from operating the

5 marijuana diversion program.

6

141. Defendant TASC’s net assets were approximately $18 million in 2016.23

7

142. In 2014, TASC paid its CEO $281,165 and its former CEO $963,358.24

8

143. In 2015, TASC paid its CEO $321,347.25

9

144. In 2016, TASC paid its CEO $308,720.26

10

Plaintiffs

11

Class Representatives Deshawn Briggs and Mark Pascale

12

145. Class representatives Deshawn Briggs and Mark Pascale were both

13 required to remain in the pretrial diversion program for more than double the time

14 required of similarly situated (but wealthier) participants solely because they were

15 unable to pay program fees.

16

146. Plaintiff Deshawn Briggs was arrested for simple possession of marijuana

17 in December 2015.

18

147. Mr. Briggs had no prior criminal record

19

148. He was not addicted to marijuana.

20

149. On or around January 13, 2016, Mr. Briggs received a letter from MCAO.

21

150. The letter stated that he had two options with respect to his marijuana

22 arrest: he could face prosecution and conviction with a punishment of two years in jail

23

24 21 The Contract states, “[U]nder no circumstances is the County liable for any fees or

25 costs related to [the] Contract.” Id. 22 Cassidy, supra note 4.

26 23 See IRS Form 990, filed by TASC for 2016, at 1.

27

24 See IRS Form 990, filed by TASC for 2014, at 7. 25 See IRS Form 990, filed by TASC for 2015, at 7.

28 26 See IRS Form 990, filed by TASC for 2016, at 7.

18

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1 and a fine of up to $150,000 plus an 80% surcharge—or he could participate in the

2 TASC pretrial diversion program.

3

151. The claims in the letter Mr. Briggs received were false.

4

152. Because this was Mr. Briggs’ first offense, under Arizona law, he could

5 not receive jail or prison time if convicted of simple possession of marijuana.

6

153. Mr. Briggs also did not face a $150,000 fine.

7

154. Mr. Briggs did not know that he could not receive jail time for conviction

8 of marijuana possession since it was his first offense.

9

155. He also did not know that he could not be fined $150,000.

10

156. Mr. Briggs chose to participate in the pretrial diversion program because

11 he did not want to go to jail and thought the diversion program was the only way to

12 avoid two years of incarceration and a six-figure fine.

13

157. Mr. Briggs followed the instructions given in the letter and contacted

14 TASC to enroll in the program.

15

158. A TASC employee told Mr. Briggs to appear for orientation and bring a

16 $150 intake fee.

17

159. At the orientation, a TASC employee informed Mr. Briggs of the program

18 requirements and fees.

19

160. The TASC employee told Mr. Briggs that he would have to submit to and

20 pass random drug and alcohol tests for 90 days, complete a three-hour drug education

21 class, and pay his program fees of $1000 in full within that 90-day period.

22

161. The TASC employee told Mr. Briggs that the program would either last

23 for 90 days or six months.

24

162. The employee told him that if he tested clean, attended the class, and paid

25 his program fees in full, then he would complete the program in 90 days.

26

27

28 19
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1

163. If he did not complete any of the three requirements in the first 90 days,

2 including payment of fees in full, he would have to stay in the program for an additional

3 three months or be prosecuted for a felony.

4

164. The TASC Employee did not ask Mr. Briggs whether he would be able

5 to pay the program and drug and alcohol testing fees.

6

165. Mr. Briggs was told to sign a “statement of facts” as a condition of entry

7 into the program.

8

166. The statement of facts stated that Mr. Briggs possessed a usable quantity

9 of marijuana.

10

167. Mr. Briggs did not consult with an attorney before signing the statement

11 because he could not afford one.

12

168. Because of this, Mr. Briggs believed that if he failed to meet the

13 program’s requirements—including paying the necessary fees—he would go to jail.

14

169. Mr. Briggs passed all of his drug tests during the first 90 days of the

15 program.

16

170. During that time period, Mr. Briggs was required to report for drug and

17 alcohol testing up to three times each week.

18

171. Mr. Briggs was forced to pay each time he reported for a drug and alcohol

19 test, even though he was struggling to pay for basic necessities.

20

172. Mr. Briggs also completed the required three-hour drug education

21 seminar during his first 90 days on the program.

22

173. However, in that first 90 days, Mr. Briggs could not afford to pay the

23 $1000 fee.

24

174. At the time, Mr. Briggs worked part time at a Walmart, where he made

25 $10 an hour.

26

175. His monthly pay was less than $1000.

27

28 20
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1

176. Mr. Briggs also has disabilities caused by spinal meningitis that limit his

2 ability to work.

3

177. During the first 90 days of the program, Mr. Briggs was only able to pay

4 $421 toward the $1000 balance.

5

178. Mr. Briggs made those payments in small installments.

6

179. He paid one $75 installment toward his $150 orientation fee on February

7 29, 2016.

8

180. He paid the second installment on April 14, 2016.

9

181. On that same date, Mr. Briggs paid another $95 toward his balance.

10

182. On May 5, 2016, Mr. Briggs paid $170 toward his balance.

11

183. On May 11, 2016, he paid another $16.

12

184. During that same time period, Mr. Briggs paid approximately $195 for

13 drug and alcohol tests.

14

185. Despite meeting all other program requirements, Mr. Briggs was not

15 considered for program completion because he had not paid the $1000 fee in full.

16

186. Instead, Mr. Briggs was required to remain on diversion, and remained

17 subject to felony criminal prosecution.

18

187. Mr. Briggs was also required to report to drug and alcohol testing once to

19 three times each week.

20

188. After the first 90 days on the program, Mr. Briggs reported for and passed

21 15 drug and alcohol tests.

22

189. These additional drug and alcohol tests cost Mr. Briggs approximately

23 $225.

24

190. Mr. Briggs also continued to make payments against his balance.

25

191. On June 16, 2016, Mr. Briggs paid $170.

26

192. On July 14, 2016, he paid $70.

27

193. On August 18, 2016, he paid $50.

28 21
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1

194. Finally, on August 25, 2016, Mr. Briggs paid a final installment of $275.

2

195. When Mr. Briggs made this final payment, a TASC employee told

3 Mr. Briggs that had successfully completed the program and that he should return to

4 the TASC office the next day to receive his certificate of completion.

5

196. Mr. Briggs returned to the TASC offices the following day and received

6 a certification of completion from TASC.

7

197. Plaintiff Mark Pascale is a 60-year-old man.

8

198. Mr. Pascale lives in Maricopa County, Arizona with his 15-year-old son,

9 for whom he is the sole provider.

10

199. Mr. Pascale is disabled; he suffers from degenerative disc disease in his

11 neck and back.

12

200. To manage his symptoms, Mr. Pascale takes an anti-epileptic drug, an

13 anti-convulsant drug, and morphine every day.

14

201. Because of his illness, Mr. Pascale has been physically unable to work

15 since 2008.

16

202. That year, Mr. Pascale filed for bankruptcy.

17

203. Mr. Pascale’s only stable source of income comes from federal disability

18 benefits.

19

204. Mr. Pascale also receives nutritional assistance benefits and, in the past,

20 has received assistance from government programs to pay his utility bills.

21

205. In May 2017, a police officer found a small amount of marijuana in

22 Mr. Pascale’s car.

23

206. Mr. Pascale was not arrested, but he received a criminal summons in the

24 mail in October 2017, stating that he was being charged with possession or use of

25 marijuana, a class 6 felony.

26

207. At his first court appearance, Mr. Pascale agreed to enroll in the

27 marijuana diversion program.

28 22
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1

208. Mr. Pascale was not addicted to marijuana.

2

209. Mr. Pascale attended an orientation for the program on November 21,

3 2017.

4

210. Mr. Pascale could not afford to pay the $150 application fee that TASC

5 requires at orientation.

6

211. A TASC employee agreed to allow Mr. Pascale to pay $75 up front

7 instead of $150 to attend the orientation.

8

212. The remaining $75 was added to Mr. Pascale’s bill, and he was required

9 to pay it before he could complete the diversion program.

10

213. During the orientation, a TASC employee told Mr. Pascale that he could

11 complete the program in 90 days if he did not fail any drug and alcohol tests and paid

12 all required fees in full.

13

214. When Mr. Pascale reported for his first mandatory drug and alcohol test,

14 he told his case worker at TASC that he could not afford to pay the $950 in program

15 fees.27

16

215. He also told her that he could not afford to pay $15 or $17 for drug and

17 alcohol testing weekly or multiple times each week.

18

216. Mr. Pascale’s case worker told him that there was no way to waive or

19 reduce the program fees.

20

217. However, she explained, his drug and alcohol testing fees could

21 potentially be reduced to $7 per test instead of $15 per test.

22

218. The case worker gave Mr. Pascale a financial information form to

23 complete.

24

219. On the form, Mr. Pascale marked that he was disabled and worked zero

25 hours per week.

26

27

28 27 Because Mr. Pascale was not arrested, he did not have to pay the $50 booking fee. 23
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1

220. He listed his income as $920 per month, explaining that he received

2 disability benefits.

3

221. The case worker told Mr. Pascale that he did not qualify for reduced drug

4 and alcohol testing fees because he owned a computer and was paying for internet

5 service, which are “luxuries.”

6

222. Mr. Pascale therefore had to pay the full $15 for each required drug and

7 alcohol test.

8

223. These payments, made out of his disability income, made it difficult for

9 Mr. Pascale to pay for basic necessities for himself and his son, including food, shelter,

10 medication, and clothing.

11

224. r. Pascale was tested at least once per week, but as often as three times

12 per week.

13

225. At least once each month, Mr. Pascale would be asked to submit to

14 additional drug and alcohol testing because he had tested positive for opiates due to the

15 prescription medications he takes.

16

226. Mr. Pascale had provided his case worker with information and

17 documentation about the prescription medications that he takes (including morphine),

18 but even so, she ordered the extra testing.

19

227. Mr. Pascale had to pay for these additional tests as well.

20

228. Mr. Pascale frequently emphasized to his case worker that he did not have

21 the money to pay for drug and alcohol tests.

22

229. The case worker told Mr. Pascale that he had to pay in order to be tested

23 and suggested he borrow money.

24

230. Mr. Pascale often skipped paying bills to keep up with the fees.

25

231. After 90 days had passed, Mr. Pascale had met all non-monetary program

26 requirements and had never failed a drug and alcohol test.

27

232. He had not, however, finished paying the $950 he owed in program fees.

28 24
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1

233. As a result, Mr. Pascale was required to remain on diversion until all of

2 the fees were paid.

3

234. During this time, he was still required to submit to and pay for drug and

4 alcohol testing up to three times each week.

5

235. Mr. Pascale made his final payment—and submitted to and passed his

6 final drug and alcohol test—on June 29, 2018, more than seven months after he had

7 entered the program.

8

236. When Mr. Pascale told his case worker that he had paid his program fees

9 in full, she told him that he had successfully completed the program and issued a

10 certificate of completion dated July 5, 2018.

11

Individual Plaintiff Taja Collier

12

237. Plaintiff Taja Collier is a 21-year-old African American woman.

13

238. On October 7, 2016, Ms. Collier was riding in a car with friends when the

14 car was pulled over by a police officer for making an improper turn.

15

239. The officer searched the car’s occupants and found a small cylinder in

16 Ms. Collier’s purse that contained trace amounts of marijuana.

17

240. The amount of marijuana in the container was so small that the police

18 officer did not weigh it.

19

241. Ms. Collier was placed under arrest for possession of marijuana.

20

242. Ms. Collier had no prior criminal record.

21

243. Ms. Collier was not addicted to marijuana.

22

244. In early Spring 2017, Ms. Collier received a letter from MCAO.

23

245. The letter gave her two choices: she could face felony charges for

24 marijuana possession, or she could agree to participate in the TASC diversion program.

25

246. The letter warned Ms. Collier that if convicted, she could be sentenced to

26 two years in jail and a fine of up to $150,000, plus an 80% surcharge.

27

247. These threats were false.

28 25
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248. Because this was Ms. Collier’s first offense, under Arizona law, she could

2 not receive jail or prison time if convicted of simple possession of marijuana.

3

249. Nor was Ms. Collier eligible for a $150,000 fine.

4

250. But Ms. Collier believed the threats in the letter.

5

251. She decided to enroll in the TASC diversion program because she did not

6 want to be fined $150,000 or spend two years in prison.

7

252. At the time of her arrest, Mr. Collier was a sophomore at Central Arizona

8 College, where she studied social work.

9

253. Central Arizona College is located in Casa Grande, Arizona, which is

10 almost an hour away from Phoenix.

11

254. When Ms. Collier learned that the TASC diversion program required

12 drug and alcohol testing in Phoenix multiple times each week, she decided she could

13 not go back to college while she was on the TASC program.

14

255. Ms. Collier did not have a car or money to make such a long trip so

15 frequently.

16

256. She had to stop attending school and move to Phoenix in order to

17 participate in the diversion program.

18

257. Ms. Collier was told that she would need to pay $150 at the orientation in

19 order to start the program.

20

258. She planned to start the program on June 22, 2017.

21

259. That week, however, Ms. Collier realized she would not be able to come

22 up with the $150 required to start the program.

23

260. Ms. Collier had recently started a job working part-time at a Target.

24

261. Ms. Collier made around minimum wage and worked approximately 16

25 hours per week.

26

262. However, she had not yet received her first paycheck.

27

28 26
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1

263. Ms. Collier called TASC’s main office to tell them that she could not

2 afford to pay the $150 fee.

3

264. No one called her back.

4

265. At 6:51 a.m. on the morning her orientation was set to begin, Ms. Collier

5 sent an email to the general email address for the possession of marijuana diversion

6 program.

7

266. The email read, “Hi, my name is Taja Collier. I called the office to

8 reschedule my appointment 2 days ago and have not received a call back. I left a

9 message for the corporate office and nod [sic] I'm sending this email. I had an

10 appointment today at 8:45 and I do not have 150 because I get my first check next week.

11 I do not want my file sent back to the court system.”

12

267. Later the same day, Ms. Collier reached a TASC employee by phone and

13 rescheduled her orientation for July 6, 2017.

14

268. Several days later, however, on June 25, 2017, Ms. Collier learned that

15 she would not be paid until after July 9, 2017.

16

269. Ms. Collier wrote again to the email address for the possession of

17 marijuana diversion program and informed TASC that she needed to reschedule the

18 orientation for after she got paid.

19

270. A TASC employee rescheduled Ms. Collier’s orientation for July 13,

20 2017.

21

271. The employee did not tell her that she could start the program even if she

22 did not pay.

23

272. The employee also did not tell her that she could apply for a fee waiver

24 or a fee reduction.

25

273. On July 13, 2017, Ms. Collier paid $150 to TASC and attended the

26 mandatory orientation.

27

28 27
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1

274. Shortly after her orientation, Ms. Collier was informed by the case

2 manager that had been assigned to her that she had to submit to a drug and alcohol test

3 and that she had to pay for the test in order to take it.

4

275. Ms. Collier was willing to take the mandatory test, but she could not

5 afford the $15 or $17 fee to pay for it.

6

276. Ms. Collier again emailed the address for the possession of marijuana

7 diversion program.

8

277. In her email, Ms. Collier pleaded: “I won't be able to come up with the

9 fee money until next Friday. I keep calling [my case manager] to figure out what my

10 next steps should be. Is there anyway [sic] I can change case managers or get some

11 assistance?”

12

278. No one responded to the email.

13

279. Nor did anyone call Ms. Collier to follow up.

14

280. Ultimately, Ms. Collier could not take the test because she could not

15 afford to pay for it.

16

281. To pay for her drug tests going forward, Ms. Collier began to sell her own

17 blood plasma whenever she was called to test.

18

282. Whenever Ms. Collier would learn that she had a drug test, she would

19 schedule a blood plasma sale so that she could pay for the test.

20

283. Ms. Collier made $20 to $35 each time she sold her blood plasma.

21

284. However, according to the blood plasma center’s rules, a person is only

22 allowed to sell blood plasma twice each week.

23

285. Therefore, weeks when Ms. Collier was called to drug test more than

24 twice were especially difficult for her to manage.

25

286. After she sold her blood plasma, Ms. Collier often felt fatigued and dizzy,

26 like she couldn’t breathe or might black out.

27

28 28
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1

287. But she continued to sell her blood plasma because it was the only way

2 she could pay for the drug tests.

3

288. Ms. Collier told her case manager at TASC that she sold her blood plasma

4 to pay for drug tests.

5

289. The case manager never told her that she could take the tests without

6 paying for them at the time of the test.

7

290. The case manager also never told her that she could apply for a reduced

8 fee.

9

291. At times, even after selling her blood plasma, Ms. Collier could not afford

10 to take drug and alcohol tests at TASC.

11

292. When this happened, Ms. Collier could not take required drug and alcohol

12 tests because she was not allowed to test if she could not pay for it.

13

293. Instead, Ms. Collier would try to contact her case manager to tell her that

14 she could not afford to pay to test.

15

294. Frequently, Ms. Collier’s case manager would not answer her phone or

16 respond to emails, and Ms. Collier would try to reach her by calling TASC’s corporate

17 office.

18

295. In September 2017, Ms. Collier became homeless.

19

296. She remained homeless for approximately one month.

20

297. While she was homeless, Ms. Collier slept in public parks.

21

298. On September 20, 2017, Ms. Collier emailed her case manager.

22

299. She explained, “I have been homeless for the passed [sic] week so money

23 has been really tight. … It has been really tough.”

24

300. Ms. Collier also told her case manager in the email that she planned to

25 start Job Corps and that she would be able to pay for drug and alcohol tests once she

26 started.

27

301. Ms. Collier’s case manager responded five days later.

28 29
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1

302. In her email, the case manager replied:

2

“Sorry to hear that you are going through this. I am hoping

3

things get better for you. I also noticed that since you are

on your FINAL NOTICE, any missed test past this point

4

will result in program termination. So I am happy to hear

5

that you are going to do whatever is possible to test next

time you are required to test. Good Luck and hope

6

everything works out for you.”

7

303. Again, the case manager did not suggest that Ms. Collier could take the

8 tests without paying for them.

9

304. Nor did she invite her to apply for a reduced fee.

10

305. Shortly after this exchange, Ms. Collier was issued another violation

11 because she did not take drug and alcohol tests solely because she could not afford to

12 pay for them.

13

306. On October 10, 2017, TASC reported to MCAO that Ms. Collier had

14 failed the diversion program.

15

307. In its reasons for failing Ms. Collier, TASC listed that Ms. Collier had not

16 submitted to mandatory drug and alcohol tests.

17

308. As described above, Ms. Collier did not take these tests solely because

18 she could not afford to pay for them.

19

309. TASC also stated that Ms. Collier was being failed because she had not

20 paid the required TASC fee and had not paid the required drug fund assessment fee.28

21

22 28 In addition, TASC stated that Ms. Collier had not attended the program’s

23 mandatory seminar. However, participants are required to take this seminar before

they can successfully complete the program; they are not required to take it at a 24 specific time. Ms. Collier would not have been failed from the diversion program

25 solely because she had not yet completed the seminar. The only other reason TASC provided for failing Ms. Collier was that she did not respond to a non-compliance

26 letter she received on August 7, 2017. But Ms. Collier was in contact with her case

27

manager after receiving this letter and explained that she could not afford to pay for drug and alcohol tests. In addition, TASC does not have a policy, practice, or custom

28 of failing diversion participants who do not respond to a letter.

30

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1

310. On December 8, 2017, MCAO filed felony charges against Ms. Collier

2 for possession of marijuana.

3

311. Ms. Collier’s preliminary hearing was on January 22, 2018.

4

312. On that same date, Ms. Collier agreed to re-enroll in the TASC possession

5 of marijuana diversion program.

6

313. Ms. Collier’s prosecution was suspended for two years to allow her to

7 complete TASC.

8

314. Ms. Collier knew that she would struggle to pay for diversion.

9

315. But she decided to re-enroll because—based on the false threats in the

10 letter that she received from MCAO—she believed that she would go to jail if she did

11 not complete diversion.

12

316. To re-enter the program, Ms. Collier was again required to pay the $150

13 admissions fee.

14

317. Ms. Collier paid $148 toward that amount on March 13, 2018.

15

318. Ms. Collier paid the remaining $2 on May 24, 2018.

16

319. Since that time, Ms. Collier has made payments of between $8 and $20.

17

320. Ms. Collier still must pay $667 to TASC before she can complete the

18 program.

19

321. Ms. Collier is still required to submit to drug and alcohol testing—at $15

20 or $17 per test—one to three times each week.

21

322. TASC still will not allow Ms. Collier to complete drug and alcohol tests

22 unless she pays for them.

23

323. Ms. Collier therefore continues to sell her blood plasma whenever she

24 knows she is going to be drug tested so that she can pay for the tests.

25

324. On August 17, 2018, Ms. Collier sent an e-mail to her case manager.

26

325. Ms. Collier wrote:

27 28
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“Tasc has really been putting a big strain on my pockets. … I am very concerned that I will end up homeless again
31

Case 2:18-cv-02684-SPL Document 1 Filed 08/23/18 Page 32 of 39

1

trying to sacrifice rent for tasc as this is putting Me [sic] in

2

a bad space. I have been donating plasma whenever I have

to test to get the money I need to pay for it, but I am afraid

3

it is affecting my health. I am willing to test whenever I'm

4

required but I cannot afford the fees. Is there anyway [sic] that I can test without having to pay for it?”

5

6

326. Ms. Collier’s case worker replied, “You have to pay for the program in

7 order to complete the program. I understand that this is cost effective [sic] but in order

8 for you to have you [sic] felony dismissed with prejudice you will have to complete all

9 program requirement [sic] which includes paying all fees associated with the

10 program.”29

11

CLASS ACTION ALLEGATIONS

12

327. The named Plaintiffs bring this case as a class action pursuant to Rules

13 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure.

14

328. The Class is defined as: All people who, since August 23, 2016, and until

15 the trial of this case, (1) were enrolled in the marijuana diversion program operated by

16 Defendants TASC and MCAO; (2) satisfied all program requirements in the first 90

17 days of the program other than payment of program fees; and (3) were not considered

18 for successful completion after 90 days solely because they were unable to pay the

19 required fees.

20

329. The class members are readily ascertainable: the names and relevant

21 records of the class members are in Defendants’ possession.

22

Numerosity: Fed. R. Civ. P. 23(a)(1)

23

330. On information and belief, the Class includes at least several hundred

24 members.

25

26
27 29 In her response, the case worker also suggested that Ms. Collier could apply for insurance to alleviate the costs of one of the mandatory treatment classes. This would
28 do nothing to relieve the costs of program fees or the fees for drug and alcohol tests. 32
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1

331. During the 2017 fiscal year (July 1, 2016 through July 30, 2017), there

2 were 2687 admittances to the possession of marijuana diversion program.

3

332. The marijuana diversion program has maintained similar numbers of

4 admittances in its last several years of operation.

5

333. Therefore, there were likely at least 2500 admittances in the 2018 fiscal

6 year.

7

334. Thus, if even a small percentage of the people admitted to TASC since

8 August 23, 2016 meet the requirements for the Class, the Class would number in the

9 hundreds.

10

335. Moreover, on information and belief, a large majority of those arrested

11 and prosecuted for marijuana possession in Maricopa County are deemed indigent for

12 the purposes of appointment of counsel.

13

Commonality: Fed. R. Civ. P. 23(a)(2)

14

336. The Class members’ claims raise common issues of fact and law.

15

337. Those common questions include, but are not limited to:

16

a. Whether Defendants have a policy, practice, and custom of refusing

17

to consider diversion participants for program completion after 90

18

days and beyond solely because they cannot afford to pay the required

19

fees, without inquiring into those participants’ ability to pay;

20

b. Whether Defendants have a policy, practice, and custom of requiring

21

diversion participants who have not paid the required fees to remain

22

on diversion supervision until they have done so, without inquiring

23

into those participants’ ability to pay;

24

c. Whether Defendants’ diversion extension policies (in subparagraphs

25

(a) and (b)) violate the Due Process and Equal Protection Clauses of

26

the Fourteenth Amendment to the U.S. Constitution;

27

28 33
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1

d. Whether Defendants have a policy, practice, and custom of requiring

2

diversion participants who remain on diversion solely due to inability

3

to pay to continue to submit to and pay for random drug and alcohol

4

tests; and

5

e. Whether Defendants’ policy of continuing this mandatory drug and

6

alcohol testing for participants who remain on the diversion program

7

solely due to inability to pay violates the Fourth Amendment to the

8

U.S. Constitution.

9

Typicality: Fed. R. Civ. P. 23(a)(3)

10

338. The Named Plaintiffs’ claims are typical of the claims of the members of

11 the Class, and they have the same interests in this case as all other members of the Class

12 that they represent.

13

339. The determination whether the Defendants’ scheme of policies, practices,

14 and customs is unlawful in the ways alleged will determine the claims of the named

15 Plaintiffs and every other class member.

16

Adequacy: Fed. R. Civ. P. 23(a)(4)

17

340. Named Plaintiffs are capable of fairly and adequately protecting the

18 interests of the Class because Named Plaintiffs do not have any interests antagonistic

19 to the Class.

20

341. There are no known conflicts of interest among class members, all of

21 whom have a similar interest in vindicating the constitutional rights to which they are

22 entitled.

23

342. Plaintiffs’ counsel are experienced in civil rights litigation and have

24 successfully litigated a number of civil rights class action cases.

25

343. Many of those cases, like this one, involve unconstitutional penalties

26 based solely on wealth status.

27

28 34
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1

Fed. R. Civ. P. 23(b)(3)

2

344. Class treatment under Rule 23(b)(3) is appropriate because the common

3 questions of law and fact overwhelmingly predominate in this case.

4

345. For every Named Plaintiff, as well as for the members of the Class, this

5 case turns on what the Defendants’ policies and practices are and on whether those

6 policies are lawful.

7

346. The common questions of law and fact listed above are dispositive

8 questions in the case of every member of the Class.

9

347. Moreover, the question of liability can therefore be determined on a class-

10 wide basis.

11

348. To the extent that individual damages will vary, they will vary depending

12 in large part on the amount of time that a person was subjected to the unlawful scheme

13 and the amount of money coerced from them.

14

349. Determining damages for individual class members can thus typically be

15 handled in a ministerial fashion based on easily verifiable records in the Defendants’

16 possession.

17

350. If need be, individual hearings on class members’ specific damages based

18 on special circumstances and particular hardships caused by Defendants’ scheme can

19 be held after class-wide liability is determined.

20

CLAIMS FOR RELIEF

21

Count One: Wealth-Based Discrimination in Violation of the

22

Fourteenth Amendment

23 Brought under 42 U.S.C. § 1983 by Named Plaintiffs Deshawn Briggs and Mark

Pascale on behalf of themselves and all others similarly situated against all

24

Defendants for damages; and by Plaintiff Taja Collier on her own behalf against

25

Defendant TASC for injunctive relief.

26

351. Defendants, acting in concert under color of state law, enacted, enforced,

27 and continue to enforce a policy, practice, and custom of subjecting diversion

28 35
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1 participants to longer terms of diversion supervision, which include in-person reporting,

2 drug and alcohol testing requirements, and increased payments, solely because of their

3 inability to pay fees associated with the program.

4

352. This policy, practice, and custom of penalizing individuals based solely

5 on wealth status violates the Due Process and Equal Protection Clauses of the

6 Fourteenth Amendment to the U.S. Constitution.

7

353. As a direct and proximate cause of Defendants’ unlawful policy, practice,

8 and custom, Plaintiffs have suffered violations of their constitutional rights and thus are

9 entitled to compensatory damages for their injuries.

10

354. Defendant TASC’s actions were willful, deliberate, and malicious, and

11 involved reckless or callous indifference to Plaintiffs’ constitutional rights.

12 Accordingly, Plaintiffs are entitled to recover punitive damages—in addition to

13 compensatory damages—against Defendant TASC.

14

355. Plaintiff Collier is still a participant in Defendants’ diversion program and

15 cannot afford to pay the fees required to successfully complete the program.

16

356. Ms. Collier seeks to enjoin Defendant TASC from forcing her to remain

17 on diversion solely because she cannot afford to pay the fees necessary to successfully

18 complete the diversion program.

19 Count Two: Unreasonable Searches and Seizures in Violation of the Fourth and

20

Fourteenth Amendments

21 Brought under 42 U.S.C. § 1983 by Named Plaintiffs Deshawn Briggs and Mark

Pascale on behalf of themselves and all others similarly situated against all

22

Defendants for damages; and by Plaintiff Taja Collier on her own behalf against

23

Defendant TASC for injunctive relief.

24

357. Defendants, acting in concert under color of state law, enacted, enforced,

25 and continue to enforce a policy, practice, and custom of requiring urinalysis to test for

26 drug and alcohol consumption for individuals who remain on the marijuana diversion

27 program solely because they were unable to pay the required fees.

28 36
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1

358. This policy, practice, and custom violates the right to be free from

2 unreasonable searches and seizures under the Fourth Amendment to the U.S.

3 Constitution.

4

359. As a direct and proximate cause of Defendants’ unlawful policy, practice,

5 and custom, Plaintiffs have suffered violations of their bodily liberty and integrity and

6 are entitled to compensatory damages for their injuries.

7

360. Defendant TASC’s actions were knowing, willful, deliberate, and

8 malicious, and involved reckless or callous indifference to Plaintiffs’ constitutional

9 rights. Accordingly, Plaintiffs are entitled to recover punitive damages—in addition to

10 compensatory damages—against Defendant TASC.

11

361. Plaintiff Collier is still a participant in Defendants’ diversion program and

12 cannot afford to pay the fees required to successfully complete the program.

13

362. Plaintiff Collier therefore requests that this Court enjoin Defendant TASC

14 from requiring her to take drug and alcohol tests solely because she cannot afford to

15 pay the fees necessary to successfully complete the diversion program.

16

Count Three: Wealth-Based Discrimination in Violation of the

17

Fourteenth Amendment

18 Brought under 42 U.S.C. § 1983 by Plaintiff Taja Collier on her own behalf against all Defendants for damages and against Defendant TASC for injunctive relief.
19

20

363. Defendants, acting in concert under color of state law, enacted, enforced,

21 and continue to enforce a policy, practice, and custom of not allowing participants in

22 Defendants’ diversion program to complete drug and alcohol tests unless those

23 participants can pay for them at the time of the test.

24

364. Defendants, acting in concert under color of state law, also enacted,

25 enforced, and continue to enforce a policy, practice, and custom of failing participants

26 from the program because those participants were not permitted to take drug and

27 alcohol tests solely because they were unable to afford them.

28 37
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1

365. These policies, practices, and customs penalized Plaintiff Collier based

2 solely on her wealth status in violation of the Due Process and Equal Protection Clauses

3 of the Fourteenth Amendment to the U.S. Constitution.

4

366. As a direct and proximate cause of Defendants’ unlawful policies,

5 practices, and customs, Plaintiff Collier suffered violations of her constitutional rights

6 and thus is entitled to compensatory damages for her injuries.

7

367. Defendant TASC’s actions were willful, deliberate, and malicious, and

8 involved reckless or callous indifference to Plaintiff Collier’s constitutional rights.

9 Accordingly, she is entitled to recover punitive damages—in addition to compensatory

10 damages—against Defendant TASC.

11

368. Plaintiff Collier is still a participant in Defendants’ diversion program and

12 cannot afford to pay the program’s fees or the fees required to take drug and alcohol

13 tests.

14

369. Plaintiff Collier therefore seeks to enjoin Defendant TASC from refusing

15 to allow her to take drug and alcohol tests solely because she is unable to pay for them.

16

370. Plaintiff Collier also seeks to enjoin Defendant TASC from terminating

17 her from the diversion program because she did not take drug and alcohol tests solely

18 because she could not afford them.

19

REQUEST FOR RELIEF

20

WHEREFORE, the Plaintiffs demand a jury trial for all issues so appropriate

21 and request this Court to issue the following relief:

22

A. That this action be certified as a class action pursuant to Rule 23 of the

23 Federal Rules of Civil Procedure, declaring Named Plaintiffs Deshawn Briggs and

24 Mark Pascale as representatives of the Class and Named Plaintiffs’ counsel as counsel

25 for the Class;

26

27

28 38
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1

B. A judgment compensating the Plaintiffs and the Class of similarly

2 situated individuals for the damages that they suffered as a result of the Defendants’

3 unconstitutional and unlawful conduct in an amount to be determined at trial;

4

C. A judgment granting the punitive damages authorized by statute based

5 on Defendant TASC’s willful and egregious violations of the law;

6

D. A judgment enjoining Defendant TASC from further unconstitutional

7 conduct against Plaintiff Taja Collier;

8

E. An order and judgment granting reasonable attorneys’ fees and costs

9 pursuant to 42 U.S.C. § 1988 and 18 U.S.C. § 1964; and

10

F. Such other and further relief as the Court deems just and proper.

11 DATED this 23rd day of August, 2018.

12 OSBORN MALEDON, P.A.
13

14

By s/ Joshua D. Bendor

Timothy J. Eckstein

15

Joshua D. Bendor

2929 N. Central Ave., Suite 2100

16

Phoenix, Arizona 85012-2793

17

CIVIL RIGHTS CORPS 18

A. Dami Animashaun* (pro hac vice

19

application to be filed)

Katherine Chamblee-Ryan** (pro hac vice

20

application to be filed)

910 17th Street NW, Second Floor

21

Washington, D.C. 20002

22

Attorneys for Plaintiffs

23

*Admitted to practice solely in New York. Not admitted in the District of

24

Columbia; practice limited pursuant to D.C. App. R. 49(c), with supervision by

Alec Karakatsanis, a member of the D.C. Bar.

25

26

**Admitted to practice in New York, Georgia, and Alabama. Not admitted in

the District of Columbia; practice limited pursuant to D.C. App. R. 49(c), with

27

supervision by Alec Karakatsanis, a member of the D.C. Bar.

28 39
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 Case 2:18-cv-02684-JAS Document 20 Filed 10/12/18 Page 1 of 54

1 Timothy J. Eckstein, 018321 Joshua D. Bendor, 031908
2 OSBORN MALEDON, P.A. 2929 N. Central Ave., Suite 2100
3 Phoenix, Arizona 85012-2793 (602) 640-9000
4 teckstein@omlaw.com jbendor@omlaw.com
5
A. Dami Animashaun 6 Katherine Chamblee-Ryan
CIVIL RIGHTS CORPS 7 910 17th Street NW, Second Floor
Washington, D.C. 20006 8 (202) 656-5189
dami@civilrightscorps.org 9 katie@civilrightscorps.org

10 Attorneys for Plaintiffs

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE DISTRICT OF ARIZONA

13 DeShawn Briggs, Mark Pascale, and

14

McKenna Stephens on behalf of themselves and all others similarly

15 situated; Taja Collier,

16 v.

Plaintiffs,

No. CV-18-2684-PHX-JAS _______________
FIRST AMENDED CLASS ACTION COMPLAINT AND JURY TRIAL DEMAND

17 William Montgomery, in his official

18

capacity as County Attorney of Maricopa County; Maricopa County;

19

Treatment Assessment Screening Center, Inc.,

20

Defendants.

21

OVERVIEW

22

1. The Maricopa County Attorney’s Office (MCAO) and the Treatment

23 Assessment Screening Center (TASC) jointly operate a possession of marijuana

24 diversion program1 that penalizes the poor because of their poverty.

25

26

27 1 This diversion program is referred to in the Complaint as “the possession of marijuana diversion program,” “the marijuana diversion program,” and “the
28 program.”

Case 2:18-cv-02684-JAS Document 20 Filed 10/12/18 Page 2 of 54

1

2. In a “diversion” program, participants undergo a period of supervision

2 and must meet certain requirements to avoid criminal prosecution and conviction.

3

3. The programs are generally “a functional equivalent of a sentence to

4 pretrial probation . . . and [are] staffed with paraprofessionals overseeing individuals in

5 what [is] in effect a probationary-type of supervision and control.”2

6

4. In principle, the programs are “intended to relieve overburdened courts

7 and crowded jails, and to spare low-risk offenders from the devastating consequences

8 of a criminal record.”3

9

5. But in Maricopa County, they serve another purpose: to make money for

10 those who operate the program, including the MCAO.4

11

6. Between 2006 and 2016, MCAO collected nearly $15 million in revenue

12 by diverting threatened prosecutions to TASC.5

13

7. The length of time a person spends in the diversion program and whether

14 the person ultimately completes the program and avoids felony criminal prosecution

15 depends on whether she can pay the program’s required fees.

16

17 2 S. Rep. No. 93–1021, at 36–37 (1974) (describing the operation of two pretrial diversion programs).

18 3 Shaila Dewan & Andrew W. Lehren, No Money, No Mercy: After a Crime, the

Price of a Second Chance, N.Y. Times (Dec. 12, 2016), 19 https://www.nytimes.com/2016/12/12/us/crime-criminal-justice-reform-

20 diversion.html. 4 See Megan Cassidy, If Prop. 205 Passes, Maricopa County Attorney’s Office
21 Funds From Marijuana Diversion Program Would Dry Up, Ariz. Republic (Oct. 26,

22 2016), https://www.azcentral.com/story/news/local/phoenix/2016/10/26/prop-205marijuana-diversion-tasc-dry-up-county-attorney-bill-montgomery-

23 millions/92795924; Ray Stern, If Prop 205 Passes, the Maricopa County Attorney’s

Budget is Likely to Take a Hit, Phoenix New Times (Oct. 31, 2016), 24 https://www.phoenixnewtimes.com/news/if-prop-205-passes-the-maricopa-county-

25 attorneys-budget-is-likely-to-take-a-hit-8782184; Ray Stern, Potential Marijuana Legalization in Arizona Threatens TASC Drug Treatment Firm’s Funding, Phoenix
26 New Times (Jan. 26, 2016), https://www.phoenixnewtimes.com/news/potential-

27

marijuana-legalization-in-arizona-threatens-tasc-drug-treatment-firms-funding7999610.

28 5 See Cassidy, supra note 4.

2

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1

8. In order to complete the program and avoid felony criminal prosecution,

2 participants in the marijuana diversion program must pay a fee of $950 or $1000.

3

9. Participants must also pay $15 or $17 for each drug and alcohol test; they

4 may be required to take as many as three or four tests each week.

5

10. The program is two-tiered: people who meet program requirements—

6 completing a three-hour drug education seminar and routine drug and alcohol testing—

7 and are wealthy enough to pay the $950 or $1000 program fee complete the program in

8 90 days and are no longer subject to felony criminal prosecution.

9

11. But participants who cannot pay the program fees are forced to stay in the

10 program for at least six months and until they can pay off the money owed to MCAO

11 and TASC, even if they have satisfied every program requirement other than payment.

12

12. During the “pay-only”6 period, participants remain subject to felony

13 criminal prosecution during the additional time they are forced to remain in the

14 diversion program.

15

13. These participants also remain subject to all of the diversion program’s

16 requirements.

17

14. These requirements include reporting to a TASC location, as often as four

18 times per week, so that the participant’s urine can be collected and tested.

19

15. Participants who remain on diversion solely because of their inability to

20 pay program fees must also continue to pay $15 or $17 each time they are required to

21 submit to a drug and alcohol test.

22

23

24 6 “Pay-only” refers to a period of criminal supervision during which the person is

25 supervised only because she has not paid all of her debt. This “extremely muscular form of debt collection,” which “masquerades as supervision,” is becoming

26 increasingly common. Human Rights Watch, Profiting from Probation: America’s

27

‘Offender Funded’ Probation Industry (Feb. 5, 2014), https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-

28 funded-probation-industry.

3

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1

16. The perverse result is that poor people are ultimately charged more

2 money—potentially hundreds of dollars more—than similarly situated participants who

3 can afford to pay to finish the program in 90 days.

4

17. Participants who cannot afford to pay for diversion may also be

5 terminated from the program altogether and referred for felony prosecution.

6

18. This can happen in at least two ways.

7

19. First, Defendants require diversion participants to make a minimum

8 monthly payment towards the $950 or $1000 program fees at a rate set by Defendant

9 TASC.

10

20. A participant who fails to pay the minimum monthly payment set by

11 Defendant TASC can be terminated from the program and prosecuted.

12

21. Defendants do not inquire into a participant’s ability to pay before setting

13 the minimum monthly fee.

14

22. Defendants’ policy does not include any exception for participants who

15 do not pay the minimum monthly amount solely because they cannot afford it.

16

23. Second, participants are not allowed to take the drug and alcohol tests the

17 program requires if they cannot afford to pay for them.

18

24. For example, if a participant cannot pay the $15 or $17 fee for a drug and

19 alcohol test, she is not allowed to take the test at all.

20

25. Therefore, if a participant reports for a drug and alcohol test without the

21 required fee, she will be turned away, and she will receive a violation for missing the

22 test.

23

26. In other words, an unpaid drug and alcohol test is a failed test.

24

27. If a participant misses too many drug and alcohol tests—even if she

25 missed them solely because she could not afford to pay for them—she will be failed out

26 of the diversion program and prosecuted for felony possession of marijuana.

27

28 4
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1

28. Defendants enforce these policies even when they know that diversion

2 participants are poor or even homeless, and even when they know that participants are

3 sacrificing basic necessities to pay fees.

4

29. And indeed, Defendants have a financial incentive to enforce the policies

5 this way—and to use the specter of termination and felony prosecution to coerce as

6 much money from participants as they can.

7

30. Diversion participants who alert TASC employees that they cannot afford

8 the required fees are told that they will be failed from the program if they do not pay

9 and to do whatever it takes to get the money.

10

31. For example, Plaintiff Marc Pascale is a 60-year-old man with

11 degenerative disc disease, which has left him physically unable to work.

12

32. TASC refused to waive his program and drug and alcohol testing fees

13 even after he repeatedly told them that he could not afford to pay the fees.

14

33. Mr. Pascale’s case manager repeatedly told him to borrow money to pay

15 the fees or else he would fail the program, lose the money he had already paid in

16 program and drug and alcohol testing fees, and be prosecuted for felony criminal

17 possession of marijuana.

18

34. Plaintiff Taja Collier emailed her case manager at TASC to tell her that

19 she was homeless and could not afford to pay for drug and alcohol testing.

20

35. Ms. Collier’s case manager responded that if she did not test, she would

21 be issued a notice of violation and her case would be sent back to court, where she

22 would be prosecuted for felony criminal possession of marijuana.

23

36. As a result, Ms. Collier sold her blood plasma to pay for drug and alcohol

24 tests.

25

37. Plaintiffs bring this civil rights action pursuant to 42 U.S.C. § 1983 to

26 redress violations of Named Plaintiffs’, class members’, and Plaintiff Collier’s rights

27 under the Fourth and Fourteenth Amendments of the United States Constitution.

28 5
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1

38. Named Plaintiffs DeShawn Briggs and Mark Pascale, as well as the class

2 members whose interests they represent, seek monetary damages against Defendants

3 for violation of these rights.

4

39. Named Plaintiff McKenna Stephens, as well as the class members whose

5 interests she represents, seeks injunctive relief against the Defendants to enjoin

6 Defendants from continuing their unlawful and unconstitutional policies, practices, and

7 customs.

8

40. Plaintiff Taja Collier seeks monetary damages and injunctive relief on her

9 own behalf.

10

PARTIES

11

Plaintiffs

12

41. Plaintiff DeShawn Briggs is a 28-year-old African American man. He is

13 a resident of Maricopa County, Arizona. Mr. Briggs spent six months in Defendants’

14 marijuana diversion program solely because he was unable to pay the program fees

15 within 90 days. He represents himself and a class of similarly situated people subject to

16 Defendants’ unlawful policies, practices, and customs.

17

42. Plaintiff Marc Pascale is a 60-year-old white man. He is a resident of

18 Maricopa County, Arizona. Mr. Pascale spent more than seven months in Defendants’

19 marijuana diversion program solely because he was unable to pay the program fees in

20 90 days. He represents himself and a class of similarly situated people subject to

21 Defendants’ unlawful policies, practices, and customs.

22

43. Plaintiff McKenna Stephens is a 24-year-old white woman. She is a

23 resident of Maricopa County, Arizona. Ms. Stephens is currently a participant in

24 Defendants’ marijuana diversion program. Ms. Stephens has complied with all of the

25 program requirements to date and will complete all non-monetary program

26 requirements during the first 90 days of the program. However, she is unable to pay the

27 program fees in full during the first 90 days of the program. Therefore, as a result of

28 6
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1 Defendants’ policies and practices, Ms. Stephens will be forced to stay in the program

2 for at least six months and until she can pay all of the required fees. As long as Ms.

3 Stephens is required to remain in the program, she will remain subject to felony criminal

4 prosecution and be forced to submit to routine, suspicionless drug and alcohol tests.

5 Ms. Stephens also cannot afford the minimum monthly payments Defendants require,

6 and Defendants may terminate her from the program as a result. She represents herself

7 and a class of similarly situated people subject to Defendants’ unlawful policies,

8 practices, and customs.

9

44. Plaintiff Taja Collier is a 21-year-old African American woman. She is

10 a resident of Maricopa County, Arizona. Ms. Collier first enrolled in Defendants’

11 marijuana diversion program in July 2017. Ms. Collier was willing to meet all diversion

12 requirements, but she could not afford to pay for drug and alcohol testing, particularly

13 during a month when she was homeless and sleeping in parks. After Ms. Collier could

14 not afford to pay for several drug and alcohol tests, she was terminated from the

15 diversion program and prosecuted for felony possession of marijuana. After prosecution

16 was initiated, Ms. Collier was again diverted into Defendants’ diversion program. Ms.

17 Collier cannot afford the minimum monthly payments Defendants require, and

18 Defendants may terminate her from the program as a result. Ms. Collier also cannot

19 afford to pay for the required drug and alcohol tests, and she may be terminated for that

20 reason as well. Ms. Collier brings this suit on her own behalf.

21

Defendants

22

45. Defendant Bill Montgomery is the elected County Attorney for

23 Maricopa County, Arizona. Defendant Montgomery is the chief official responsible for

24 the enforcement and prosecution of felonies within Maricopa County. Defendant

25 Montgomery is also responsible for operating and administering the deferred

26 prosecution programs in Maricopa County. Defendant Montgomery is the final

27 policymaker for Maricopa County on matters relating to diversion programs, including

28 7
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1 the marijuana diversion program at issue in this lawsuit. He is sued in his official

2 capacity.

3

46. Defendant Maricopa County, Arizona7 is a political subdivision formed

4 and designated as such pursuant to Title 11 of the Arizona Revised Statutes. Defendant

5 Maricopa County can sue and be sued in its own name. Maricopa County is liable for

6 the practices and policies of Defendants Montgomery and TASC. The County has and

7 continues to acquiesce in the administration of the TASC drug diversion program,

8 including the marijuana diversion program at issue in this lawsuit.

9

47. Defendant Treatment Assessment Screening Center is a private, non-

10 profit, 501(c)(3) corporation headquartered in Phoenix, Arizona. Defendant TASC has

11 contracted and continues to contract with MCAO to operate, administer, and supervise

12 the marijuana diversion program at issue in this lawsuit. Defendant TASC supervises

13 all people whose prosecutions for simple possession of marijuana have been diverted.

14 Defendant TASC acts under the color of law in its administration and supervision of

15 the County’s marijuana diversion program.

16

JURISDICTION

17

48. This action arises under 42 U.S.C. § 1983 and the Constitution of the

18 United States. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and

19 1343.

20

49. Venue is proper under 28 U.S.C. § 1391(b). All Defendants’ official

21 places of business are located within this District. The events giving rise to the claims

22 occurred in this District.

23

24

25

26
27 7 Defendant Montgomery, in his official capacity, acts on behalf of and is the final policymaker for Maricopa County with respect to the conduct described in this
28 lawsuit. If this is correct, naming Maricopa County as a defendant is redundant. 8
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1

STATEMENT OF FACTS

2 I. Defendants’ Unlawful Policies

3

Marijuana Possession Prosecutions in Maricopa County

4

50. In Arizona, possession of any amount of marijuana—even trace

5 amounts—can be prosecuted as a felony.8

6

51. Felony prosecution has severe consequences.

7

52. According to the National Inventory of the Collateral Consequences of

8 Conviction—an American Bar Association database—people convicted of felony

9 offenses in Arizona are subject to over 350 “collateral consequences” as a direct result

10 of a felony criminal conviction.9

11

53. For example, a person convicted of a felony in Arizona cannot vote, serve

12 on a jury, obtain a commercial driver’s license, possess a gun, or join the U.S. armed

13 forces.10

14

54. A felony conviction may also bar a person from receiving professional

15 licenses and affect a person’s child custody rights, parental status, and housing.11

16

55. A person with a felony drug conviction in Arizona may lose public

17 benefits, such as food stamps and social security benefits.12

18

19 8 See Ariz. Rev. Stat. Ann. § 13-3405(B)(1) (providing that possession of “an

20 amount of marijuana not possessed for sale having a weight of less than two pounds is guilty of a class 6 felony”). Arizona is the only state in the nation where any amount
21 of marijuana, no matter how small, can draw a felony charge. See Jacob Sullum,

22 Explaining His Cannabis Conversion, John Boehner Cites a Marijuana Myth, Reason (Apr. 12, 2018), http://reason.com/blog/2018/04/12/explaining-his-cannabis-

23 conversion-john/print. Possession of marijuana paraphernalia is also a class 6 felony

under Arizona law. See Ariz. Rev. Stat. Ann. § 13-3415(A). 24 9 See National Inventory of the Collateral Consequences of Conviction,

25 https://niccc.csgjusticecenter.org/search/?jurisdiction=8 (last visited Oct. 12, 2018). 10 See Consequences of a Felony, Maricopa County, AZ,

26 https://www.maricopa.gov/930/Consequences-for-a-Felony (last visited Oct. 11,

27

2018). 11 Id.

28 12 Id.

9

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1

56. Defendant County Attorney Bill Montgomery has aggressively opposed

2 legalization measures as well as efforts to reduce simple possession of marijuana to a

3 misdemeanor.

4

57. In 2016, Defendant Montgomery successfully advocated against the

5 passage of Proposition 205, a ballot initiative that would have made recreational

6 marijuana use legal in Arizona.

7

58. Defendant Montgomery made numerous public statements and

8 participated in public debates attacking the initiative and advocating for its failure.

9

59. During a public debate on marijuana legalization, Defendant

10 Montgomery told a Vietnam veteran, who admitted to using medical marijuana for back

11 pain and occasional recreation use, “I have no respect for you. … [Y]ou’re an enemy.”

12

60. Defendant Montgomery has also worked to narrow Arizona’s medical

13 marijuana laws.

14

61. For example, when Defendant Montgomery learned that doctors were

15 able to stop a five-year-old’s seizures by using a marijuana extract, he threatened the

16 child’s parents with felony prosecution, arguing that extracts were not covered by the

17 state’s medical marijuana allowance.13

18

62. Drug possession charges represent an overwhelming proportion of the

19 charges filed by MCAO.

20

63. Possession of marijuana is the MCAO’s most commonly prosecuted

21 offense; it amounts to approximately 15 percent of total prosecutions.14

22

23

24 13 Evan Wyloge, Court Rules Medical Marijuana Patients Can Use Extracts, Ariz.

25 Capitol Times (Mar. 22, 2014), https://azcapitoltimes.com/news/2014/03/22/azmedical-marijuana-patients-can-use-cannabis-extract-court-rules-bill-montgomery.

26 14 See Maricopa County Attorney’s Office, 2016 Annual Report, at 43,

27

available at https://www.maricopacountyattorney.org/ArchiveCenter/ViewFile/Item/88. The year 2016 is the most recent for which MCAO has published

28 this charging data.

10

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1

64. And more broadly, more than 45 percent of MCAO’s prosecutions are for

2 drug possession.15

3

65. Between 2006 and 2016, MCAO made nearly $15 million from diverting

4 threatened prosecutions to TASC.16

5

The Possession of Marijuana Diversion Program

6

66. For most people who are arrested in Maricopa County for simple

7 possession of marijuana or marijuana paraphernalia, the only way to avoid a felony

8 criminal prosecution is to complete the diversion program offered by MCAO.

9

67. To operate, administer, and supervise participants in the program, MCAO

10 has contracted with TASC, a private, non-profit company.

11

68. TASC also partners with MCAO to administer a diversion program for

12 possession of narcotics.

13

69. More than 15,000 people participated in MCAO and TASC’s marijuana

14 diversion program between 2011 and 2017.17

15

70. Over that same time period, the marijuana diversion program accounted

16 for approximately three quarters of TASC’s total intakes for drug diversion.18

17

71. People arrested for simple possession of marijuana or marijuana

18 paraphernalia can enter the diversion program either before or after criminal charges

19 are filed.

20

21
22 15 Id. (calculated by adding the percentage of the total offenses charged represented by each type of drug charge listed).
23 16 Cassidy, supra note 4. 17 See id. (providing the number of participants who enrolled in the program
24 between 2011 and 2015); Letter from Bill Montgomery, County Attorney, Maricopa
25 County, to Elizabeth Ortiz, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council (Aug. 8, 2017) (providing the number of participants who enrolled
26 in the program from July 1, 2016 through June 30, 2017). 27 18 See Cassidy, supra note 4; Letter from Bill Montgomery, County Attorney,
Maricopa County, to Elizabeth Ortiz, Executive Director, Arizona Prosecuting
28 Attorneys’ Advisory Council (Aug. 8, 2017). 11
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1

72. People who enter into the marijuana diversion program post-filing have

2 charges filed against them prior to enrolling in the program.

3

73. The charges are suspended while the person completes the program.

4

74. If the person successfully completes the program, MCAO dismisses the

5 case.

6

75. If the person fails to complete the program, MCAO reinstates

7 prosecution.

8

76. People can also enter the program before any criminal charges are filed

9 in court.

10

77. People who enter the marijuana diversion program pre-filing are sent a

11 letter from MCAO.

12

78. The letter informs the person that she is facing class 6 felony charges and

13 offers two options: criminal prosecution or the TASC marijuana diversion program.

14

79. The letter warns, “If convicted of a class 6 felony, you could receive a

15 maximum sentence of 2 years in prison and a maximum fine of $150,000 plus 80%

16 surcharge.”

17

80. The letter also warns that a class 1 misdemeanor conviction could result

18 in “a maximum sentence of six months in jail and a maximum fine of $2,500.00 plus

19 80% surcharge.”

20

81. The threats in this letter are false.

21

82. The pre-filing diversion program generally only includes people with no

22 prior convictions.

23

83. Under Arizona law, jail or prison time is prohibited for a first or second

24 offense of simple possession of marijuana.

25

84. Instead, for people in this category, the law requires drug treatment and a

26 maximum penalty of probation. See Ariz. Rev. Stat. § 13-901.01(A), (D), (H)(1).

27

28 12
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1

85. Accordingly, the people who receive the pre-filing letter threatening jail

2 time are ineligible to be jailed as a matter of state law.

3

86. The letter’s representation that its recipients could be fined $150,000 plus

4 an 80% surcharge are false as well.19

5

87. After delivering these false threats, the letter explains the basic

6 requirements of the marijuana diversion program and provides a deadline and contact

7 information to sign up for the program.

8

88. If a person in the pre-filing category completes the diversion program,

9 MCAO will not file charges against her.

10

89. Failing the program results in criminal prosecution.20

11

90. Participants who do not complete the diversion program and whose cases

12 are prosecuted have little hope of avoiding felony criminal prosecution and conviction

13 because people who enroll in the marijuana diversion program—whether pre- or post-

14 filing—are first required to sign a statement of facts admitting their guilt.

15

91. A TASC employee tells participants exactly what to write in the statement

16 of facts.

17

92. The following information must be written into the statement:

18

a. Date and location of the offense;

19

b. The full name of the substance possessed;

20

c. That the participant possessed a usable amount of the substance; and

21

22 19 A person convicted of possession of marijuana can be fined $750 or three times

23 the value of the marijuana involved. See Ariz. Rev. Stat. § 13-3405(D). $150,000 is

the maximum fine allowable for any felony. See Ariz. Rev. Stat. § 13-801(a). No 24 person accused of a crime involving $150,000 worth of marijuana would be eligible

25 for TASC. 20 When a person in the pre-filing group fails diversion, the prosecutor will file

26 charges in the case. When a person in the post-filing group fails diversion, the

27

prosecutor will move to reinstate the prosecution. As a matter of policy, practice, and custom, for both pre- and post-filing participants, TASC sends the participant a final

28 warning letter before the participant is failed from the program.

13

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1

d. The facts of the offense, which must read, “the [name of the drug] was

2

found in [where the drug was found] in my possession.”

3

93. This signed statement of facts can be used against a person if she fails to

4 complete the marijuana diversion program and is criminally prosecuted. See State v.

5 Gill, 391 P.3d 1193, 1197 (Ariz. 2017) (holding that a written admission contained in

6 a statement of facts obtained by a TASC representative was admissible at trial).

7

The Cost of Avoiding Prosecution

8

94. Once enrolled in the marijuana diversion program, the requirements for

9 the pre- and post-filing participants are the same.

10

95. For both groups of participants, avoiding prosecution costs money.

11

96. To complete the program, all participants must:

12

a. Pay program fees—$950 or $1000—in full;

13

b. Pay for and pass routine drug and alcohol tests for 90 days; and

14

c. Complete a three-hour drug education seminar.

15

97. The mandatory $950 or $1000 program fee includes the following:

16

a. $150 admission fee;

17

b. $650 “drug fund” fee;

18

c. $150 TASC fee; and

19

d. $50 booking fee, which applies only to participants who were arrested

20

and booked.

21

98. All of these fees must be paid in person by debit card or with a money

22 order.

23

99. Participants are not allowed to pay by any other means, including with

24 credit or cash.

25

100. Defendants require that participants pay the $150 admission fee at the

26 program orientation.

27

28 14
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1

101. If a participant is unable to pay the $150 admission fee at orientation

2 because she cannot afford it, Defendants allow her to pay $75 at orientation and the

3 other $75 during the program.

4

102. If a participant cannot afford to pay $75 at orientation, she may be told to

5 return with the money the same day or be failed from the program and face felony

6 prosecution.

7

103. In addition to the $950 or $1000 in fees, participants must pay to take

8 drug and alcohol tests at TASC.

9

104. Each drug and alcohol test costs $15 or $17, depending on the method of

10 payment.

11

105. Participants must call TASC or consult a phone application every day,

12 seven days a week to determine whether they are required to report to a TASC location

13 that day so that TASC can collect and test their urine.

14

106. If a participant does not call daily, she may miss a scheduled test and be

15 sanctioned, which could ultimately result in termination from the diversion program,

16 followed by felony prosecution.

17

107. Participants are required to drug test at least once—and often multiple

18 times—each week.

19

108. At the TASC location, TASC employees watch participants through glass

20 panels while they submit urine for drug and alcohol testing.

21

109. In at least one TASC location, the bathroom where participants submit

22 urine for testing includes multiple mirrors so that a TASC employee can watch the

23 participant urinate from multiple angles.

24

110. Records obtained as part of the preliminary investigation for this lawsuit

25 revealed that participants may be required to test as many as nine times per month.

26

111. Thus, on top of the $1000 in program fees, diversion participants pay at

27 least $60—but up to $153—each month for drug and alcohol tests.

28 15
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1

112. In addition to the three program requirements, Defendants impose a

2 number of additional terms on participants.

3

113. These terms are set forth in a document called the “Client Contract.” 21

4

114. The Client Contract states that diversion participants must make

5 minimum monthly payments towards those fees at a rate set by Defendant TASC.

6

115. The rate set forth in the Client Contract is $160 or $170 per month.

7

116. Defendant TASC does not inquire into a participant’s ability to pay before

8 setting the minimum monthly fee.

9

117. If a participant does not make the minimum monthly payment set by

10 Defendant TASC, she can be terminated from the program and then prosecuted.

11

118. The Client Contract also prohibits, among other things:

12

a. Alcohol use, including over-the-counter medications that include

13

alcohol, like NyQuil;22

14

b. Leaving the state for any amount of time without “special permission

15

from TASC”;23

16

c. Leaving Maricopa County for more than one day without informing a

17

TASC case manager;24

18

d. Taking any prescription medication without reporting it to a TASC

19

case manager and bringing the prescription to TASC for

20

verification.25

21

22

23

21 See MCAO/TASC Adult Deferred Prosecution Program Possession of 24 Marijuana, Client Contract (hereinafter “Client Contract”). In this Complaint,

25 Plaintiffs cite the version of the Client Contract distributed to participants on Tuesday, October 9, 2018.

26 22 Id. ¶ 5.

27

23 24

Id. ¶ 10. Id.

28 25 Id. ¶ 3.

16

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1

119. The Client Contract also states that “[u]nless disability status applies,

2 [participants] must be employed while participating in the program.”26

3

120. “[V]iolation of any” of these provisions “can result in program

4 termination.”27

5

Defendants Require Participants to Remain on Diversion

Until All Fees Are Paid

6

121. Participants who complete the three program requirements—including

7 full payment of fees—within 90 days complete the diversion program at that point, and

8 they are not subject to felony criminal prosecution thereafter.

9

122. However, as a matter of policy, practice, and custom, people who cannot

10 afford to pay the program fees in full within 90 days are not released from the

11 program—even if they have completed the other program requirements, including

12 passing all drug and alcohol tests.

13

123. Instead, participants who cannot afford to pay these fees must remain

14 subject to the requirements of the diversion program for a minimum of six months.

15

124. If these participants are not able to pay the program fees by the end of six

16 months, they must remain in the program until they do.

17

125. Defendants do not assess a person’s ability to pay before refusing to

18 consider her for program completion after 90 days, even when the participant has

19 completed every program requirement other than payment.

20

126. Nor do Defendants assess a person’s ability to pay before they require her

21 to remain on diversion beyond six months and until all fees are paid.

22

127. People who are forced to stay on diversion solely because they cannot

23 afford to pay program fees remain subject felony prosecution until they complete the

24 program.

25

26

27 26 Id. ¶ 17. 28 27 Id. (unnumbered paragraph).
17
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1

128. In addition, these “pay only”28 participants are subject to same

2 requirements as they were during the first 90 days on diversion.

3

129. Thus, “pay only” participants are barred from drinking alcohol, taking

4 certain medications (like NyQuil), and leaving the State without Defendant TASC’s

5 approval.29

6

130. “Pay only” participants must continue to submit to one or more drug and

7 alcohol tests weekly—under the threat of felony criminal prosecution.

8

131. These participants must also complete all of the requirements attendant

9 to the drug and alcohol tests.

10

132. For example, participants must continue to call TASC every day, seven

11 days a week, to determine whether they are required to report to a TASC location during

12 a certain time period that day so that TASC can collect and test their urine.

13

133. People who remain on diversion because they cannot afford to pay

14 program fees are also still forced to pay $15 or $17 for each drug and alcohol test.

15

134. As a result, these participants may ultimately have to pay hundreds of

16 dollars more than people wealthy enough to pay the $950 or $1000 program fee within

17 90 days—in addition to remaining subject to felony criminal prosecution for months

18 longer.

19

Defendants Terminate Participants from the Diversion Program

for Failure to Pay Minimum Monthly Program Fees

20

135. Pursuant to Defendants’ written policy, failure to pay program fees at the

21 monthly rate set by Defendant TASC will result in termination from the program and

22 prosecution for felony possession of marijuana.

23

24

25

26

27 28 See supra note 6 (explaining the term “pay-only”). 28 29 See Client Contract ¶¶ 3, 5, 10.
18
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1

136. The Client Contract, to which all participants are subject, states that the

2 minimum monthly rate is $160 or $170.

3

137. Defendants’ policy does not include any exception for participants who

4 did not make their monthly payment solely because they could not afford it.

5

138. Defendants do not inquire into a participant’s ability to pay before setting

6 the minimum monthly fee.

7

139. The Client Contract states: “Failure to make payments [toward the

8 program fees] each month as agreed will result in [the] case being returned for

9 prosecution.”30

10

140. Another paragraph of the Client Contract states that “failure to test as

11 scheduled, continued positive/diluted/altered tests, missed seminar/counseling, and/or

12 failure to make payments as agreed may result in unsuccessful termination from the

13 program.”31

14

141. Defendants have discretion as to when to enforce this policy; they may

15 terminate a participant on the first missed payment or the tenth.

16

142. But in every case, Defendants have a financial incentive to use the threat

17 of termination to coerce as much money from participants as they can.

18

143. Thus, a diversion participant who at any point is unable to make the

19 monthly payment set by Defendant TASC can be terminated from the program and

20 prosecuted for felony possession of marijuana.

21

Defendants Do Not Allow Participants to Take Drug and Alcohol Tests

22

Unless They Pay for Them

23

144. As a matter of policy, practice, and custom, Defendants do not allow

24 diversion participants to take the program’s mandatory drug and alcohol tests unless

25 they can pay for them at the time of the test.

26

27 30 Id. ¶ 12. 28 31 Id. ¶ 17 (emphasis added).
19
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1

145. As a result, poor people are forced to extend their time on the program

2 for failing to take mandatory drug and alcohol tests—solely because they could not

3 afford to pay for them.

4

146. People who cannot afford to take drug and alcohol tests may also fail the

5 program altogether.

6

147. Missed drug and alcohol tests are counted as “violations”—even when a

7 person only missed the test because she could not afford to pay for it.

8

148. The Client Contract states that “failure to test as scheduled . . . may result

9 in unsuccessful termination from the program.”32

10

149. A person who accrues too many of these violations will be failed by

11 TASC and referred to the MCAO for prosecution.

12

150. When this happens, a person faces felony prosecution solely because of

13 her inability to pay.

14

151. No one at TASC assesses a person’s ability to pay before referring her for

15 prosecution because she did not pay for drug and alcohol tests.

16

152. Nor does anyone at MCAO assess ability to pay before prosecuting

17 people who have failed diversion solely because of their inability to pay for drug and

18 alcohol tests.

19

Defendants’ Refusal to Waive Fees for the Poor

20

153. As a matter of policy, practice, and custom, Defendants do not reduce or

21 waive the $950 or $1000 program fee for any person, regardless of financial

22 circumstances.

23

154. Defendants contend that they allow for reductions of drug and alcohol

24 testing fees to $7 instead of $15 per test for participants who cannot afford them—but

25 these reductions are almost never granted in practice.

26

27 32 Client Contract ¶ 16.
28 20
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1

155. At the outset, Defendants do not assess participants’ ability to pay before

2 charging them in full for tests.

3

156. But even when Defendants are aware that a participant is indigent and

4 unable to pay without sacrificing basic necessities, Defendants require the participant

5 to pay the full $15 or $17 to test.

6

157. One TASC employee interviewed by investigators for undersigned

7 counsel stated that reduced drug and alcohol testing fees are reserved for people who

8 can demonstrate that they have basically zero income.

9

158. Another TASC employee explained that fee reductions are “very

10 difficult” to get and that “it rarely happens.”

11

159. As one TASC employee explained, drug and alcohol testing is “strictly

12 fee for service.”

13

160. When participants tell TASC case managers that they are struggling to

14 pay, the case managers recommend they borrow money from friends or family because

15 they will be failed from the program and prosecuted if they do not pay.

16

161. According to Defendants’ written policy, even in the rare cases that fee

17 reductions are granted, full fees can be reinstated as a punishment for a dirty or diluted

18 urine test.

19

162. Defendants’ Client Contract warns, “If [a participant’s] fees are reduced

20 and [the participant] submit[s] a positive/diluted/altered urine test, full fees may be

21 reinstated … from that point forward until completion of the program.”33

22

The “User-Funded” Model

23

163. Defendants MCAO and TASC advertise the diversion program as “user-

24 funded.”

25

26

27 33 See MCAO/TASC Adult Deferred Prosecution Program Possession of 28 Marijuana, Client Contract ¶ 13.
21
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1

164. According to MCAO, “user-funded” means that “the [person entering the

2 program] typically bears the costs of the initial assessment and the assigned treatment.”

3

165. A brochure published by MCAO describing its felony pretrial diversion

4 programs notes that “defendants … bear the costs of the program.”34

5

166. Defendant TASC’s website explains that the diversion program “is fully

6 funded by the clients we serve.”35

7

167. Defendant TASC is responsible for collecting fees from the people

8 enrolled in the diversion program.

9

168. Defendant TASC keeps a portion of the money it collects.

10

169. The $650 “drug fund fee” that Defendant TASC collects from each

11 participant is deposited to MCAO.

12

170. MCAO does not publicly disclose how it spends the money it receives

13 from the program.

14

171. In addition to collecting fees, the Contract between Defendants MCAO

15 and TASC makes Defendant TASC responsible for most of the day-to-day operations

16 of the possession of marijuana diversion program.

17

172. This includes administering drug and alcohol tests, tracking participants’

18 attendance and participation, and determining whether a participant has completed the

19 program requirements.

20

173. MCAO’s duties under the Contract are to assess the appropriateness of

21 referrals to the program and to send qualified participants to Defendant TASC.

22

174. The Contract does not require the MCAO to pay Defendant TASC any

23 money.

24

25

26 34 Maricopa County Attorney’s Office, Felony Pretrial Intervention Program

27

(2018). 35 Diversion, TASC, http://www.tascsolutions.org/tasc-services/diversion (last

28 visited Aug. 22, 2018).

22

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1

175. Instead, the Contract provides that the program’s participants alone will

2 pay Defendant TASC, and “no public monies will be expended pursuant to [the

3 Contract].”36

4

176. The Contract does provide that, “[a]t his option, the County Attorney may

5 utilize monies accumulated in the Drug Diversion Fund to satisfy the costs associated

6 with this agreement if the participant is indigent and unable to pay the costs associated

7 with the … diversion program.”37

8

177. But there is no requirement that MCAO make such payments. 38

9

178. Between 2006 and 2016, MCAO made nearly $15 million in fees from

10 participants in the marijuana diversion program.39

11

179. Defendant TASC has also benefited financially from operating the

12 marijuana diversion program.

13

180. Defendant TASC’s net assets were approximately $18 million in 2016.40

14

181. In 2014, TASC paid its CEO $281,165 and its former CEO $963,358.41

15

182. In 2015, TASC paid its CEO $321,347.42

16

183. In 2016, TASC paid its CEO $308,720.43

17 II. Plaintiffs

18

Damages Class Representatives DeShawn Briggs and Mark Pascale

19

184. Class representatives DeShawn Briggs and Mark Pascale were both

20 required to remain in the pretrial diversion program for more than double the time

21

22 36 MCAO & TASC, Behavior Specific Adult Diversion Program Contract, at 1

23 (Mar. 22, 2016, effective through Sept. 30, 2018).

37 Id. 24 38 The Contract states, “[U]nder no circumstances is the County liable for any fees

25 or costs related to [the] Contract.” Id. 39 Cassidy, supra note 4.

26 40 See IRS Form 990, filed by TASC for 2016, at 1.

27

41 42

See IRS Form 990, filed by TASC for 2014, at 7. See IRS Form 990, filed by TASC for 2015, at 7.

28 43 See IRS Form 990, filed by TASC for 2016, at 7.

23

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1 required of similarly situated (but wealthier) participants solely because they were

2 unable to pay program fees.

3

185. Plaintiff DeShawn Briggs is a 28-year-old African American man.

4

186. In December 2015, Mr. Briggs was arrested for simple possession of

5 marijuana.

6

187. At the time of his arrest, Mr. Briggs worked part-time at Walmart, where

7 he made $10 per hour.

8

188. Mr. Briggs had no prior criminal record.

9

189. He was not addicted to marijuana.

10

190. On or around January 13, 2016, Mr. Briggs received a letter from MCAO.

11

191. The letter stated that he had two options with respect to his marijuana

12 arrest: he could face prosecution and conviction with a punishment of two years in jail

13 and a fine of up to $150,000 plus an 80% surcharge—or he could participate in the

14 TASC pretrial diversion program.

15

192. The claims in the letter Mr. Briggs received were false.

16

193. Because this was Mr. Briggs’ first offense, under Arizona law, he could

17 not receive jail or prison time if convicted of simple possession of marijuana.

18

194. Mr. Briggs also did not face a $150,000 fine.

19

195. Mr. Briggs did not know that he could not receive jail time for conviction

20 of marijuana possession since it was his first offense.

21

196. He also did not know that he could not be fined $150,000.

22

197. Mr. Briggs chose to participate in the pretrial diversion program because

23 he did not want to go to jail and thought the diversion program was the only way to

24 avoid two years of incarceration and a six-figure fine.

25

198. Mr. Briggs followed the instructions given in the letter and contacted

26 TASC to enroll in the program.

27

28 24
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1

199. A TASC employee told Mr. Briggs to appear for orientation and bring a

2 $150 intake fee.

3

200. At the orientation, a TASC employee informed Mr. Briggs of the program

4 requirements and fees.

5

201. The TASC employee told Mr. Briggs that he would have to submit to and

6 pass random drug and alcohol tests for 90 days, complete a three-hour drug education

7 class, and pay his program fees of $1000 in full within that 90-day period.

8

202. The TASC employee told Mr. Briggs that the program would either last

9 for 90 days or six months.

10

203. The employee told him that if he tested clean, attended the class, and paid

11 his program fees in full, then he would complete the program in 90 days.

12

204. If he did not complete any of the three requirements in the first 90 days,

13 including payment of fees in full, he would have to stay in the program for an additional

14 three months or be prosecuted for a felony.

15

205. The TASC employee did not ask Mr. Briggs whether he would be able to

16 pay the program and drug and alcohol testing fees.

17

206. Mr. Briggs was told to sign a “statement of facts” as a condition of entry

18 into the program.

19

207. The statement of facts stated that Mr. Briggs possessed a usable quantity

20 of marijuana.

21

208. Mr. Briggs did not consult with an attorney before signing the statement

22 because he could not afford one.

23

209. Because of this, Mr. Briggs believed that if he failed to meet the

24 program’s requirements—including paying the necessary fees—he would go to jail.

25

210. Mr. Briggs passed all of his drug tests during the first 90 days of the

26 program.

27

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1

211. During that time period, Mr. Briggs was required to report for drug and

2 alcohol testing up to three times each week.

3

212. Mr. Briggs was forced to pay each time he reported for a drug and alcohol

4 test, even though he was struggling to pay for basic necessities.

5

213. Mr. Briggs also completed the required three-hour drug education

6 seminar during his first 90 days on the program.

7

214. However, in that first 90 days, Mr. Briggs could not afford to pay the

8 $1000 fee.

9

215. Mr. Briggs’s monthly pay at Walmart was less than $1000.

10

216. Mr. Briggs also has disabilities caused by spinal meningitis that limit his

11 ability to work.

12

217. During the first 90 days of the program, Mr. Briggs was only able to pay

13 $421 toward the $1000 balance.

14

218. Mr. Briggs made those payments in small installments.

15

219. He paid one $75 installment toward his $150 orientation fee on February

16 29, 2016.

17

220. He paid the second installment on April 14, 2016.

18

221. On that same date, Mr. Briggs paid another $95 toward his balance.

19

222. On May 5, 2016, Mr. Briggs paid $170 toward his balance.

20

223. On May 11, 2016, he paid another $16.

21

224. During that same time period, Mr. Briggs paid approximately $195 for

22 drug and alcohol tests.

23

225. Despite meeting all other program requirements, Mr. Briggs was not

24 considered for program completion at the 90-day mark because he had not paid the

25 $1000 fee in full.

26

226. Instead, Mr. Briggs was required to remain on diversion, and remained

27 subject to felony criminal prosecution.

28 26
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1

227. Mr. Briggs was also required to continue reporting to drug and alcohol

2 testing one to three times each week.

3

228. After the first 90 days on the program, Mr. Briggs reported for and passed

4 15 additional drug and alcohol tests.

5

229. The final drug and alcohol test that Mr. Briggs submitted to and paid for

6 was on August 23, 2016.

7

230. In total, the 15 drug and alcohol tests that Mr. Briggs had to take during

8 the pay-only period cost Mr. Briggs approximately $225.

9

231. Mr. Briggs also continued to make payments against his balance.

10

232. On June 16, 2016, Mr. Briggs paid $170.

11

233. On July 14, 2016, he paid $70.

12

234. On August 18, 2016, he paid $50.

13

235. Finally, on August 25, 2016, Mr. Briggs paid a final installment of $275.

14

236. When Mr. Briggs made this final payment, a TASC employee told

15 Mr. Briggs that had successfully completed the program and that he should return to

16 the TASC office the next day to receive his certificate of completion.

17

237. Mr. Briggs returned to the TASC offices the following day and received

18 a certification of completion from TASC.

19

238. Plaintiff Mark Pascale is a 60-year-old man.

20

239. Mr. Pascale lives in Maricopa County, Arizona with his 15-year-old son,

21 for whom he is the sole provider.

22

240. Mr. Pascale is disabled; he suffers from degenerative disc disease in his

23 neck and back.

24

241. To manage his symptoms, Mr. Pascale takes an anti-epileptic drug, an

25 anti-convulsant drug, and morphine every day.

26

242. Because of his illness, Mr. Pascale has been physically unable to work

27 since 2008.

28 27
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1

243. That year, Mr. Pascale filed for bankruptcy.

2

244. Mr. Pascale’s only stable source of income comes from federal disability

3 benefits.

4

245. Mr. Pascale also receives nutritional assistance benefits and, in the past,

5 has received assistance from government programs to pay his utility bills.

6

246. In May 2017, a police officer found a small amount of marijuana in

7 Mr. Pascale’s car.

8

247. Mr. Pascale was not arrested, but he received a criminal summons in the

9 mail in October 2017, stating that he was being charged with possession or use of

10 marijuana, a class 6 felony.

11

248. At his first court appearance, Mr. Pascale agreed to enroll in the

12 marijuana diversion program.

13

249. Mr. Pascale was not addicted to marijuana.

14

250. Mr. Pascale attended an orientation for the program on November 21,

15 2017.

16

251. Mr. Pascale could not afford to pay the $150 application fee that TASC

17 requires at orientation.

18

252. A TASC employee agreed to allow Mr. Pascale to pay $75 up front

19 instead of $150 to attend the orientation.

20

253. The remaining $75 was added to Mr. Pascale’s bill, and he was required

21 to pay it before he could complete the diversion program.

22

254. During the orientation, a TASC employee told Mr. Pascale that he could

23 complete the program in 90 days if he did not fail any drug and alcohol tests and paid

24 all required fees in full.

25

26

27

28 28
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1

255. When Mr. Pascale reported for his first mandatory drug and alcohol test,

2 he told his case worker at TASC that he could not afford to pay the $950 in program

3 fees.44

4

256. He also told her that he could not afford to pay $15 or $17 for drug and

5 alcohol testing weekly or multiple times each week.

6

257. Mr. Pascale’s case worker told him that there was no way to waive or

7 reduce the program fees.

8

258. However, she explained, his drug and alcohol testing fees could

9 potentially be reduced to $7 per test instead of $15 per test.

10

259. The case worker gave Mr. Pascale a financial information form to

11 complete.

12

260. On the form, Mr. Pascale marked that he was disabled and worked zero

13 hours per week.

14

261. He listed his income as $920 per month, explaining that he received

15 disability benefits.

16

262. The case worker told Mr. Pascale that he did not qualify for reduced drug

17 and alcohol testing fees because he owned a computer and was paying for internet

18 service, which are “luxuries.”

19

263. Mr. Pascale therefore had to pay the full $15 for each required drug and

20 alcohol test.

21

264. These payments, made out of his disability income, made it difficult for

22 Mr. Pascale to pay for basic necessities for himself and his son, including food, shelter,

23 medication, and clothing.

24

265. Mr. Pascale was tested at least once per week, but as often as three times

25 per week.

26

27 44 Because Mr. Pascale was not arrested, he did not have to pay the $50 booking 28 fee.
29
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1

266. At least once each month, Mr. Pascale would be asked to submit to

2 additional drug and alcohol testing because he had tested positive for opiates due to the

3 prescription medications he takes.

4

267. Mr. Pascale had provided his case worker with information and

5 documentation about the prescription medications that he takes (including morphine),

6 but even so, she ordered the extra testing.

7

268. Mr. Pascale had to pay for these additional tests as well.

8

269. Mr. Pascale frequently emphasized to his case worker that he did not have

9 the money to pay for drug and alcohol tests.

10

270. The case worker told Mr. Pascale that he had to pay in order to be tested

11 and suggested he borrow money.

12

271. Mr. Pascale often skipped paying bills to keep up with the fees.

13

272. After 90 days had passed, Mr. Pascale had met all non-monetary program

14 requirements and had never failed a drug and alcohol test.

15

273. He had not, however, finished paying the $950 he owed in program fees.

16

274. As a result, Mr. Pascale was required to remain on diversion until all of

17 the fees were paid.

18

275. During this time, he was still required to submit to and pay for drug and

19 alcohol testing up to three times each week.

20

276. Mr. Pascale made his final payment—and submitted to and passed his

21 final drug and alcohol test—on June 29, 2018, more than seven months after he had

22 entered the program.

23

277. When Mr. Pascale told his case worker that he had paid his program fees

24 in full, she told him that he had successfully completed the program and issued a

25 certificate of completion dated July 5, 2018.

26

Injunctive Relief Class Representative McKenna Stephens

27

278. Plaintiff McKenna Stephens is a 24-year-old white woman.

28 30
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1

279. Ms. Stephens works as a part-time server at a restaurant.

2

280. On October 29, 2016, Ms. Stephens was sitting with a friend in a car when

3 they were approached by two police officers.

4

281. The officers searched the car and found a small amount of marijuana and

5 marijuana paraphernalia in the vehicle.

6

282. Ms. Stephens was arrested for possession of marijuana.

7

283. She was booked into a local jail and released.

8

284. The arresting officer told Ms. Stephens that she would receive a letter in

9 the mail regarding next steps.

10

285. Ms. Stephens had no prior criminal convictions.

11

286. She was not addicted to marijuana.

12

287. On August 3, 2018—nearly two years after she was arrested for

13 marijuana possession—Ms. Stephens received a letter from Defendant MCAO about

14 the marijuana arrest.

15

288. The letter gave her a choice: she could agree to participate in the TASC

16 diversion program or she would face felony prosecution.

17

289. The letter threatened Ms. Stephens that, if convicted, she could be

18 sentenced to two years of imprisonment and a fine of up to $150,000, plus an 80%

19 surcharge.

20

290. These threats were false.

21

291. Because this was Ms. Stephens’s first marijuana arrest, under Arizona

22 law, she could not receive jail or prison time if convicted of simple possession of

23 marijuana.

24

292. Nor was Ms. Stephens eligible for a $150,000 fine.

25

293. But Ms. Stephens believed the threats Defendant MCAO made in the

26 letter.

27

28 31
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1

294. She decided to enroll in the diversion program because she did not want

2 to be fined $150,000 or spend two years in prison.

3

295. Prior to orientation for the diversion program, a TASC employee told Ms.

4 Stephens that she would have to pay $150 in order to attend orientation and begin the

5 program.

6

296. Ms. Stephens attended orientation for the marijuana diversion program

7 on September 18, 2018.

8

297. That same day, Ms. Stephens paid $150 to TASC.

9

298. During the orientation, a TASC employee told Ms. Stephens that in order

10 to complete the program in 90 days, she would have to submit to and pass random drug

11 and alcohol tests, attend a three-hour drug and alcohol seminar, and pay the $1000

12 program fee within that time period.

13

299. The TASC employee told Ms. Stephens that if she were unable to meet

14 any of the three requirements—including full payment of program fees—within 90

15 days, she would have to stay in the diversion program for at least six months and until

16 the program fees were paid.

17

300. The TASC employee also told Ms. Stephens that, in addition to the $1000

18 program fee, she would have to pay $15 each time she submitted to a drug and alcohol

19 test.

20

301. Ms. Stephens informed the TASC employee that she had a medical

21 marijuana card and was legally able to use marijuana.

22

302. The TASC employee told her that she could use marijuana while on the

23 marijuana diversion program, but that Ms. Stephens would still have to submit to and

24 pay for random drug and alcohol tests.

25

303. During her first week in the marijuana diversion program, Defendants

26 required Ms. Stephens to submit to four drug and alcohol tests.

27

28 32
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1

304. Defendants required Ms. Stephens to pay $15 for each of the four drug

2 and alcohol tests.

3

305. Ms. Stephens intends to fulfill all of the non-monetary requirements of

4 the diversion program within the first 90 days.

5

306. However, Ms. Stephens cannot afford to pay the $1000 program fee

6 within 90 days.

7

307. Ms. Stephens’s sole income is the $600 or $700 she makes each month

8 as a part-time server.

9

308. Ms. Stephens’s allocates almost 100% of her income towards paying her

10 bills and expenses, which includes her car payment, insurance, gas, and phone service.

11

309. In order to complete diversion within 90 days, Ms. Stephens would have

12 to pay well over $300 each month.

13

310. Ms. Stephens could not pay this amount without defaulting on bill

14 payments and sacrificing basic necessities.

15

311. Because Ms. Stephens cannot pay the $1000 program fees within 90 days,

16 pursuant to Defendants’ policy, practice, and custom, she will be required to remain on

17 diversion (and subject to the diversion program’s requirements) for at least six months

18 and until she is able to pay the $1000 program fee.

19

312. Without sacrificing basic necessities or defaulting on bills, Ms. Stephens

20 also cannot afford to pay Defendant TASC’s standard monthly minimum payment of

21 $160 or $170 per month, which was set forth in the Client Contract to which she is

22 subject.

23

313. If Ms. Stephens cannot afford to make the minimum monthly payment,

24 pursuant to Defendants’ written policy, she will be terminated from the diversion

25 program.45

26

27 45 Id. ¶ 12 (“Failure to make payments [toward the program fees] each month as 28 agreed will result in [the] case being returned for prosecution.”).
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1

314. Pursuant to Defendants’ policies, practices, and customs, if Ms. Stephens

2 is terminated from the diversion program, she will be prosecuted for felony possession

3 of marijuana.

4

315. At orientation, Ms. Stephens was told to sign a statement of facts

5 confessing to possession of marijuana as a condition of entering the program.

6

316. Ms. Stephens believed that signing the statement in order to enter the

7 diversion program was the only way that she could avoid prosecution and potential

8 confinement for two years and a $150,000 fine.

9

317. Arizona law allows this confession to be used against Ms. Stephens in

10 court.

11

318. Accordingly, Ms. Stephens believes that if she is prosecuted, she will be

12 convicted of felony marijuana possession because she signed the confession.

13

Individual Plaintiff Taja Collier

14

319. Plaintiff Taja Collier is a 21-year-old African American woman.

15

320. On October 7, 2016, Ms. Collier was riding in a car with friends when the

16 car was pulled over by a police officer for making an improper turn.

17

321. The officer searched the car’s occupants and found a small cylinder in

18 Ms. Collier’s purse that contained trace amounts of marijuana.

19

322. The amount of marijuana in the container was so small that the police

20 officer did not weigh it.

21

323. Ms. Collier was placed under arrest for possession of marijuana.

22

324. Ms. Collier had no prior criminal record.

23

325. Ms. Collier was not addicted to marijuana.

24

326. In early Spring 2017, Ms. Collier received a letter from MCAO.

25

327. The letter gave her two choices: she could face felony charges for

26 marijuana possession, or she could agree to participate in the TASC diversion program.

27

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1

328. The letter warned Ms. Collier that if convicted, she could be sentenced to

2 two years in jail and a fine of up to $150,000, plus an 80% surcharge.

3

329. These threats were false.

4

330. Because this was Ms. Collier’s first offense, under Arizona law, she could

5 not receive jail or prison time if convicted of simple possession of marijuana.

6

331. Nor was Ms. Collier eligible for a $150,000 fine.

7

332. But Ms. Collier believed the threats in the letter.

8

333. She decided to enroll in the TASC diversion program because she did not

9 want to be fined $150,000 or spend two years in prison.

10

334. At the time of her arrest, Mr. Collier was a sophomore at Central Arizona

11 College, where she studied social work.

12

335. Central Arizona College is located in Casa Grande, Arizona, which is

13 almost an hour away from Phoenix.

14

336. When Ms. Collier learned that the TASC diversion program required

15 drug and alcohol testing in Phoenix multiple times each week, she decided she could

16 not go back to college while she was on the TASC program.

17

337. Ms. Collier did not have a car or money to make such a long trip so

18 frequently.

19

338. She had to stop attending school and move to Phoenix in order to

20 participate in the diversion program.

21

339. Ms. Collier was told that she would need to pay $150 at the orientation in

22 order to start the program.

23

340. She planned to start the program on June 22, 2017.

24

341. That week, however, Ms. Collier realized she would not be able to come

25 up with the $150 required to start the program.

26

342. Ms. Collier had recently started a job working part-time at a Target.

27

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1

343. Ms. Collier made around minimum wage and worked approximately 16

2 hours per week.

3

344. However, she had not yet received her first paycheck.

4

345. Ms. Collier called TASC’s main office to tell them that she could not

5 afford to pay the $150 fee.

6

346. No one called her back.

7

347. At 6:51 a.m. on the morning her orientation was set to begin, Ms. Collier

8 sent an email to the general email address for the possession of marijuana diversion

9 program.

10

348. The email read, “Hi, my name is Taja Collier. I called the office to

11 reschedule my appointment 2 days ago and have not received a call back. I left a

12 message for the corporate office and nod [sic] I'm sending this email. I had an

13 appointment today at 8:45 and I do not have 150 because I get my first check next week.

14 I do not want my file sent back to the court system.”

15

349. Later the same day, Ms. Collier reached a TASC employee by phone and

16 rescheduled her orientation for July 6, 2017.

17

350. Several days later, however, on June 25, 2017, Ms. Collier learned that

18 she would not be paid until after July 9, 2017.

19

351. Ms. Collier wrote again to the email address for the possession of

20 marijuana diversion program and informed TASC that she needed to reschedule the

21 orientation for after she got paid.

22

352. A TASC employee rescheduled Ms. Collier’s orientation for July 13,

23 2017.

24

353. The employee did not tell her that she could start the program even if she

25 did not pay.

26

354. The employee also did not tell her that she could apply for a fee waiver

27 or a fee reduction.

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1

355. On July 13, 2017, Ms. Collier paid $150 to TASC and attended the

2 mandatory orientation.

3

356. Shortly after her orientation, Ms. Collier was informed by the case

4 manager that had been assigned to her that she had to submit to a drug and alcohol test

5 and that she had to pay for the test in order to take it.

6

357. Ms. Collier was willing to take the mandatory test, but she could not

7 afford the $15 or $17 fee to pay for it.

8

358. Ms. Collier again emailed the address for the possession of marijuana

9 diversion program.

10

359. In her email, Ms. Collier pleaded: “I won't be able to come up with the

11 fee money until next Friday. I keep calling [my case manager] to figure out what my

12 next steps should be. Is there anyway [sic] I can change case managers or get some

13 assistance?”

14

360. No one responded to the email.

15

361. Nor did anyone call Ms. Collier to follow up.

16

362. Ultimately, Ms. Collier could not take the test because she could not

17 afford to pay for it.

18

363. To pay for her drug tests going forward, Ms. Collier began to sell her own

19 blood plasma whenever she was called to test.

20

364. Whenever Ms. Collier would learn that she had a drug test, she would

21 schedule a blood plasma sale so that she could pay for the test.

22

365. Ms. Collier made $20 to $35 each time she sold her blood plasma.

23

366. However, according to the blood plasma center’s rules, a person is only

24 allowed to sell blood plasma twice each week.

25

367. Therefore, weeks when Ms. Collier was called to drug test more than

26 twice were especially difficult for her to manage.

27

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1

368. After she sold her blood plasma, Ms. Collier often felt fatigued and dizzy,

2 like she couldn’t breathe or might black out.

3

369. But she continued to sell her blood plasma because it was the only way

4 she could pay for the drug tests.

5

370. Ms. Collier told her case manager at TASC that she sold her blood plasma

6 to pay for drug tests.

7

371. The case manager never told her that she could take the tests without

8 paying for them at the time of the test.

9

372. The case manager also never told her that she could apply for a reduced

10 fee.

11

373. At times, even after selling her blood plasma, Ms. Collier could not afford

12 to take drug and alcohol tests at TASC.

13

374. When this happened, Ms. Collier could not take required drug and alcohol

14 tests because she was not allowed to test if she could not pay for it.

15

375. Instead, Ms. Collier would try to contact her case manager to tell her that

16 she could not afford to pay to test.

17

376. Frequently, Ms. Collier’s case manager would not answer her phone or

18 respond to emails, and Ms. Collier would try to reach her by calling TASC’s corporate

19 office.

20

377. In September 2017, Ms. Collier became homeless.

21

378. She remained homeless for approximately one month.

22

379. While she was homeless, Ms. Collier slept in public parks.

23

380. On September 20, 2017, Ms. Collier emailed her case manager.

24

381. She explained, “I have been homeless for the passed [sic] week so money

25 has been really tight. … It has been really tough.”

26

27

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1

382. Ms. Collier also told her case manager in the email that she planned to

2 start Job Corps and that she would be able to pay for drug and alcohol tests once she

3 started.

4

383. Ms. Collier’s case manager responded five days later.

5

384. In her email, the case manager replied:

6

“Sorry to hear that you are going through this. I am hoping

7

things get better for you. I also noticed that since you are

on your FINAL NOTICE, any missed test past this point

8

will result in program termination. So I am happy to hear

9

that you are going to do whatever is possible to test next

time you are required to test. Good Luck and hope

10

everything works out for you.”

11

385. Again, the case manager did not suggest that Ms. Collier could take the

12 tests without paying for them.

13

386. Nor did she invite her to apply for a reduced fee.

14

387. Shortly after this exchange, Ms. Collier was issued another violation

15 because she did not take drug and alcohol tests solely because she could not afford to

16 pay for them.

17

388. On October 10, 2017, TASC reported to MCAO that Ms. Collier had

18 failed the diversion program.

19

389. In its reasons for failing Ms. Collier, TASC listed that Ms. Collier had not

20 submitted to mandatory drug and alcohol tests.

21

390. As described above, Ms. Collier did not take these tests solely because

22 she could not afford to pay for them.

23

391. TASC also stated that Ms. Collier was being failed because she had not

24 paid the required TASC fee and had not paid the required drug fund assessment fee.46

25 46

In addition, TASC stated that Ms. Collier had not attended the program’s

26 mandatory seminar. However, participants are required to take this seminar before they

27

can successfully complete the program; they are not required to take it at a specific time. Ms. Collier would not have been failed from the diversion program solely because

28 she had not yet completed the seminar. The only other reason TASC provided for failing

39

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392. On December 8, 2017, MCAO filed felony charges against Ms. Collier

2 for possession of marijuana.

3

393. Ms. Collier’s preliminary hearing was on January 22, 2018.

4

394. On that same date, Ms. Collier agreed to re-enroll in the TASC possession

5 of marijuana diversion program.

6

395. Ms. Collier’s prosecution was suspended for two years to allow her to

7 complete TASC.

8

396. Ms. Collier knew that she would struggle to pay for diversion.

9

397. But she decided to re-enroll because—based on the false threats in the

10 letter that she received from MCAO—she believed that she would go to jail if she did

11 not complete diversion.

12

398. To re-enter the program, Ms. Collier was again required to pay the $150

13 admissions fee.

14

399. Ms. Collier paid $148 toward that amount on March 13, 2018.

15

400. Ms. Collier paid the remaining $2 on May 24, 2018.

16

401. Since that time, Ms. Collier has made payments of between $8 and $20.

17

402. Ms. Collier still must pay $667 to TASC before she can complete the

18 program.

19

403. Ms. Collier cannot afford this sum without sacrificing basic necessities

20 like food and housing.

21

404. Nor can she afford to pay it at the rate required by Defendant TASC in

22 the Client Contract.

23

405. Ms. Collier is also still required to submit to drug and alcohol testing—at

24 $15 or $17 per test—one to three times each week.

25 Ms. Collier was that she did not respond to a non-compliance letter she received on
26 August 7, 2017. But Ms. Collier was in contact with her case manager after receiving

27

this letter and explained that she could not afford to pay for drug and alcohol tests. In addition, TASC does not have a policy, practice, or custom of failing diversion

28 participants who do not respond to a letter.

40

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406. TASC still will not allow Ms. Collier to complete drug and alcohol tests

2 unless she pays for them.

3

407. Ms. Collier therefore continues to sell her blood plasma whenever she

4 knows she is going to be drug tested so that she can pay for the tests.

5

408. On August 17, 2018, Ms. Collier sent an e-mail to her case manager.

6

409. Ms. Collier wrote:

7

“Tasc has really been putting a big strain on my pockets. …

8

I am very concerned that I will end up homeless again

trying to sacrifice rent for tasc as this is putting Me [sic] in

9

a bad space. I have been donating plasma whenever I have

10

to test to get the money I need to pay for it, but I am afraid

it is affecting my health. I am willing to test whenever I'm

11

required but I cannot afford the fees. Is there anyway [sic]

that I can test without having to pay for it?” 12

13

410. Ms. Collier’s case worker replied, “You have to pay for the program in

14 order to complete the program. I understand that this is cost effective [sic] but in order

15 for you to have you [sic] felony dismissed with prejudice you will have to complete all

16 program requirement [sic] which includes paying all fees associated with the

17 program.”47

18

411. On September 4, 2018, Ms. Collier was scheduled to submit to a drug and

19 alcohol test at TASC.

20

412. Ms. Collier did not have any money to pay for the drug test.

21

413. Nevertheless, at approximately 6 p.m., Ms. Collier reported to the TASC

22 office in Phoenix to submit to a test.

23

414. When she arrived, Ms. Collier told a male TASC staff member that she

24 was willing to take the drug and alcohol test, but that she could not pay the fee that day.

25

26
27 47 In her response, the case worker also suggested that Ms. Collier could apply for insurance to alleviate the costs of one of the mandatory treatment classes. This would
28 do nothing to relieve the costs of program fees or the fees for drug and alcohol tests. 41
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415. The TASC staff member told Ms. Collier that if she did not have the

2 money, she could not take the drug and alcohol test.

3

CLASS ACTION ALLEGATIONS

4

416. The named Plaintiffs bring this case as a class action pursuant to Rules

5 23(a), 23(b)(2), and 23(b)(3) of the Federal Rules of Civil Procedure.

6

417. The Classes are defined as follows:

7

a. Damages Class: All people who, since August 23, 2016, and until the trial

8

of this case, (1) were enrolled in the marijuana diversion program

9

operated by Defendants TASC and MCAO; (2) satisfied all program

10

requirements in the first 90 days of the program other than payment of

11

program fees; and (3) were not considered for successful completion after

12

90 days solely because they were unable to pay the required fees. Named

13

Plaintiffs Deshawn Briggs and Mark Pascale seek certification of this

14

class.

15

b. Injunctive Class: All people who (1) have not yet been formally charged

16

with possession of marijuana; (2) received a pre-filing letter offering

17

participation in the MCAO and TASC marijuana diversion program; and

18

3) are unable to pay the required program fees within 90 days and/or at

19

the rate required by Defendant TASC. Named Plaintiff McKenna

20

Stephens seeks certification of this class.

21

418. The class members are readily ascertainable: the names and relevant

22 records of the class members are in Defendants’ possession.

23

Numerosity: Fed. R. Civ. P. 23(a)(1)

24

419. On information and belief, both Classes include at least several hundred

25 members.

26

420. During the 2017 fiscal year (July 1, 2016 through July 30, 2017), there

27 were 2687 admittances to the possession of marijuana diversion program.

28 42
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1

421. The marijuana diversion program has maintained similar numbers of

2 admittances in its last several years of operation.

3

422. Therefore, there were likely at least 2500 admittances in the 2018 fiscal

4 year.

5

423. Thus, if even a small percentage of the people admitted to TASC since

6 August 23, 2016 meet the requirements for the Classes, the Classes would number in

7 the hundreds.

8

424. Moreover, on information and belief, a large majority of those arrested

9 and prosecuted for marijuana possession in Maricopa County are deemed indigent for

10 the purposes of appointment of counsel.

11

Commonality: Fed. R. Civ. P. 23(a)(2)

12

425. The Class members’ claims raise common issues of fact and law.

13

426. With respect to the Damages Class, those common questions include, but

14 are not limited to:

15

a. Whether Defendants have a policy, practice, and custom of refusing

16

to consider diversion participants for program completion after 90

17

days and beyond solely because they cannot afford to pay the required

18

fees, without inquiring into those participants’ ability to pay;

19

b. Whether Defendants have a policy, practice, and custom of requiring

20

diversion participants who have not paid the required fees to remain

21

on diversion supervision until they have done so, without inquiring

22

into those participants’ ability to pay;

23

c. Whether Defendants’ diversion extension policies (in subparagraphs

24

(a) and (b)) violate the Due Process and Equal Protection Clauses of

25

the Fourteenth Amendment to the U.S. Constitution;

26

d. Whether Defendants have a policy, practice, and custom of requiring

27

diversion participants who remain on diversion solely due to inability

28 43
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1

to pay to continue to submit to and pay for random drug and alcohol

2

tests; and

3

e. Whether Defendants’ policy of continuing this mandatory drug and

4

alcohol testing for participants who remain on the diversion program

5

solely due to inability to pay violates the Fourth Amendment to the

6

U.S. Constitution.

7

427. With respect to the Injunctive Class, those common questions include,

8 but are not limited to:

9

a. Whether Defendants have a policy, practice, and custom of refusing

10

to consider diversion participants for program completion after 90

11

days and beyond solely because they cannot afford to pay the required

12

fees, without inquiring into those participants’ ability to pay;

13

b. Whether Defendants have a policy, practice, and custom of requiring

14

diversion participants who have not paid the required fees to remain

15

on diversion supervision until they have done so, without inquiring

16

into those participants’ ability to pay;

17

c. Whether Defendants’ diversion extension policies (in subparagraphs

18

(a) and (b)) violate the Due Process and Equal Protection Clauses of

19

the Fourteenth Amendment to the U.S. Constitution;

20

d. Whether Defendants have a policy, practice, and custom of requiring

21

diversion participants who remain on diversion solely due to inability

22

to pay to continue to submit to and pay for random drug and alcohol

23

tests;

24

e. Whether Defendants’ policy of continuing this mandatory drug and

25

alcohol testing for participants who remain on the diversion program

26

solely due to inability to pay violates the Fourth Amendment to the

27

U.S. Constitution;

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1

f. Whether Defendants have a policy, practice, and custom of requiring

2

diversion participants to make a minimum monthly payment and

3

terminating those who fail to do so, without inquiring into those

4

participants’ ability to pay; and

5

g. Whether Defendants’ policy of terminating participants who cannot

6

afford to make a minimum monthly payment policy violates the Due

7

Process and Equal Protection Clauses of the Fourteenth Amendment

8

to the U.S. Constitution.

9

Typicality: Fed. R. Civ. P. 23(a)(3)

10

428. The Named Plaintiffs’ claims are typical of the claims of the members of

11 the Class, and they have the same interests in this case as all other members of the Class

12 that they represent.

13

429. The determination whether the Defendants’ scheme of policies, practices,

14 and customs is unlawful in the ways alleged will determine the claims of the named

15 Plaintiffs and every other class member.

16

Adequacy: Fed. R. Civ. P. 23(a)(4)

17

430. Named Plaintiffs are capable of fairly and adequately protecting the

18 interests of the Class because Named Plaintiffs do not have any interests antagonistic

19 to the Class.

20

431. There are no known conflicts of interest among class members, all of

21 whom have a similar interest in vindicating the constitutional rights to which they are

22 entitled.

23

432. Plaintiffs’ counsel are experienced in civil rights litigation and have

24 successfully litigated a number of civil rights class action cases.

25

433. Many of those cases, like this one, involve unconstitutional penalties

26 based solely on wealth status.

27

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1

Predomination, Injunctive Class: Fed. R. Civ. P. 23(b)(2)

2

434. Class treatment under Rule 23(b)(2) is appropriate because the common

3 questions of law and fact predominate in this case.

4

435. For Named Plaintiff McKenna Stephens, as well as for the members of

5 the Class, this case turns on what the Defendants’ policies and practices are and on

6 whether those policies are lawful.

7

436. The common questions of law and fact listed above are dispositive

8 questions in the case for every member of the Class.

9

437. Because the putative Class challenges the Defendants’ scheme as

10 unconstitutional through injunctive relief that would apply to every member of the

11 Class, Rule 23(b) (2) certification is proper.

12

Predomination, Damages Class: Fed. R. Civ. P. 23(b)(3)

13

438. Class treatment under Rule 23(b)(3) is appropriate because the common

14 questions of law and fact overwhelmingly predominate in this case.

15

439. For every Named Plaintiff, as well as for the members of the Class, this

16 case turns on what the Defendants’ policies and practices are and on whether those

17 policies are lawful.

18

440. The common questions of law and fact listed above are dispositive

19 questions in the case of every member of the Class.

20

441. Moreover, the question of liability can therefore be determined on a class-

21 wide basis.

22

442. To the extent that individual damages will vary, they will vary depending

23 in large part on the amount of time that a person was subjected to the unlawful scheme

24 and the amount of money coerced from them.

25

443. Determining damages for individual class members can thus typically be

26 handled in a ministerial fashion based on easily verifiable records in the Defendants’

27 possession.

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1

444. If need be, individual hearings on class members’ specific damages based

2 on special circumstances and particular hardships caused by Defendants’ scheme can

3 be held after class-wide liability is determined.

4

CLAIMS FOR RELIEF

5

Count One: Wealth-Based Discrimination in Violation of the

6

Fourteenth Amendment

7 Brought under 42 U.S.C. § 1983 by Named Plaintiffs DeShawn Briggs and Mark

Pascale on behalf of themselves and all others similarly situated against all

8

Defendants for damages.

9

445. Defendants, acting in concert under color of state law, enacted, enforced, 10

11 and continue to enforce a policy, practice, and custom of subjecting diversion

12 participants to longer terms of diversion supervision while under threat of felony

13 prosecution, which include in-person reporting, drug and alcohol testing requirements,

14 and increased payments, solely because of their inability to pay fees associated with the

15 program.

16

446. This policy, practice, and custom of penalizing individuals based solely

17 on wealth status violates the Due Process and Equal Protection Clauses of the

18 Fourteenth Amendment to the U.S. Constitution.

19

447. As a direct and proximate cause of Defendants’ unlawful policy, practice,

20 and custom, Plaintiffs have suffered violations of their constitutional rights and thus are

21 entitled to compensatory damages for their injuries.

22

448. Defendant TASC’s actions were willful, deliberate, and malicious, and

involved reckless or callous indifference to Plaintiffs’ constitutional rights. 23

Accordingly, Plaintiffs are entitled to recover punitive damages—in addition to 24

compensatory damages—against Defendant TASC. 25

26

27

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Count Two: Wealth-Based Discrimination in Violation of the

2

Fourteenth Amendment

3 Brought under 42 U.S.C. § 1983 by Named Plaintiff McKenna Stephens on behalf of

herself and all others similarly situated against all Defendants for injunctive relief;

4

and by Plaintiff Taja Collier on her own behalf against Defendant TASC for

5

injunctive relief.

6

449. Defendants, acting in concert under color of state law, enacted, enforced,

7 and continue to enforce a policy, practice, and custom of subjecting participants to

8 longer terms of diversion and/or terminating them from the diversion program based on

9 wealth status.

10

450. Defendants subject diversion participants to longer terms of diversion

11 supervision while under threat of felony prosecution, which include in-person

12 reporting, drug and alcohol testing requirements, and increased payments, solely

13 because of their inability to pay fees associated with the program.

14

451. Pursuant to a written policy, Defendants terminate participants who

15 cannot afford to make specific minimum monthly payments toward diversion program

16 fees and subsequently prosecute them for felony possession of marijuana.

17

452. These policies, practices, and customs violates the Due Process and Equal

18 Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.

19

453. As a direct and proximate cause of Defendants’ unlawful policies,

20 practices, and customs, Plaintiffs will continue to suffer violations of their

21 constitutional rights unless Defendants are enjoined.

22

454. Plaintiff Stephens is a participant in Defendants’ diversion program and

23 cannot afford to pay the fees required to complete the program in 90 days.

24

455. Plaintiff Stephens seeks to enjoin Defendants from requiring her, and all

25 others similarly situated, to remain on diversion for more than 90 days solely because

26 they cannot afford to pay the fees necessary to complete the diversion program.

27

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1

456. Plaintiff Stephens also cannot afford to pay the minimum monthly fees

2 set by Defendant TASC.

3

457. Plaintiff Stephens seeks to enjoin Defendants from terminating her from

4 the diversion program solely because she cannot afford to pay minimum monthly fees.

5

458. Plaintiff Collier is a participant in Defendants’ diversion program and

6 cannot afford to pay the fees required to complete the program.

7

459. Ms. Collier seeks to enjoin Defendant TASC from forcing her to remain

8 on diversion solely because she cannot afford to pay the fees necessary to complete the

9 diversion program.

10

460. Plaintiff Collier also cannot afford to pay the minimum monthly fees set

11 by Defendant TASC.

12

461. Plaintiff Collier seeks to enjoin Defendant TASC from terminating her

13 from the diversion program solely because she cannot afford to pay monthly minimum

14 fees.

15

Count Three: Wealth-Based Discrimination in Violation of the

16

Fourteenth Amendment

17 Brought under 42 U.S.C. § 1983 by Plaintiff Taja Collier on her own behalf against all Defendants for damages and against Defendant TASC for injunctive relief.
18

19

462. Defendants, acting in concert under color of state law, enacted, enforced,

20 and continue to enforce a policy, practice, and custom of not allowing participants in

21 Defendants’ diversion program to complete drug and alcohol tests unless those

22 participants can pay for them at the time of the test.

23

463. Defendants, acting in concert under color of state law, also enacted,

24 enforced, and continue to enforce a policy, practice, and custom of failing participants

25 from the program because those participants were not permitted to take drug and

26 alcohol tests solely because they were unable to afford them.

27

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1

464. These policies, practices, and customs penalized Plaintiff Collier based

2 solely on her wealth status in violation of the Due Process and Equal Protection Clauses

3 of the Fourteenth Amendment to the U.S. Constitution.

4

465. As a direct and proximate cause of Defendants’ unlawful policies,

5 practices, and customs, Plaintiff Collier suffered violations of her constitutional rights

6 and thus is entitled to compensatory damages for her injuries.

7

466. Defendant TASC’s actions were willful, deliberate, and malicious, and

8 involved reckless or callous indifference to Plaintiff Collier’s constitutional rights.

9 Accordingly, she is entitled to recover punitive damages—in addition to compensatory

10 damages—against Defendant TASC.

11

467. Plaintiff Collier is still a participant in Defendants’ diversion program and

12 cannot afford to pay the program’s fees or the fees required to take drug and alcohol

13 tests.

14

468. Plaintiff Collier therefore seeks to enjoin Defendant TASC from refusing

15 to allow her to take drug and alcohol tests solely because she is unable to pay for them.

16

469. Plaintiff Collier also seeks to enjoin Defendant TASC from terminating

17 her from the diversion program because she did not take drug and alcohol tests solely

18 because she could not afford them.

19 Count Four: Unreasonable Searches and Seizures in Violation of the Fourth and

20

Fourteenth Amendments

21 Brought under 42 U.S.C. § 1983 by Named Plaintiffs DeShawn Briggs and Mark

Pascale on behalf of themselves and all others similarly situated against all

22

Defendants for damages.

23

470. Defendants, acting in concert under color of state law, enacted, enforced,

24 and continue to enforce a policy, practice, and custom of requiring urinalysis to test for

25 drug and alcohol consumption for individuals who remain on the marijuana diversion

26 program solely because they were unable to pay the required fees.

27

28 50
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1

471. This policy, practice, and custom violates the right to be free from

2 unreasonable searches and seizures under the Fourth Amendment to the U.S.

3 Constitution.

4

472. As a direct and proximate cause of Defendants’ unlawful policy, practice,

5 and custom, Plaintiffs have suffered violations of their bodily liberty and integrity and

6 are entitled to compensatory damages for their injuries.

7

473. Defendant TASC’s actions were knowing, willful, deliberate, and

8 malicious, and involved reckless or callous indifference to Plaintiffs’ constitutional

9 rights. Accordingly, Plaintiffs are entitled to recover punitive damages—in addition to

10 compensatory damages—against Defendant TASC.

11 Count Five: Unreasonable Searches and Seizures in Violation of the Fourth and

12

Fourteenth Amendments

13 Brought under 42 U.S.C. § 1983 by Named McKenna Stephens on behalf of herself and all others similarly situated against all Defendants for injunctive relief; and by
14 Plaintiff Taja Collier on her own behalf against Defendant TASC for injunctive relief.

15

474. Defendants, acting in concert under color of state law, enacted, enforced,

16 and continue to enforce a policy, practice, and custom of requiring urinalysis to test for

17 drug and alcohol consumption for individuals who remain on the marijuana diversion

18 program solely because they were unable to pay the required fees.

19

475. This policy, practice, and custom violates the right to be free from

20 unreasonable searches and seizures under the Fourth Amendment to the U.S.

21 Constitution.

22

476. As a direct and proximate cause of Defendants’ unlawful policy, practice,

23 and custom, Plaintiffs will suffer violations of their bodily liberty and integrity unless

24 Defendants are enjoined.

25

477. Plaintiff Stephens is currently a participant in Defendants’ diversion

26 program and cannot afford to pay the fees required to complete the program in 90 days.

27

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1

478. Plaintiff Stephens seeks to enjoin Defendants from requiring her, and all

2 others similarly situated, to submit to drug and alcohol testing after 90 days in the

3 program if the sole reason she remains on the program is that she cannot afford to pay

4 the fees necessary to complete it.

5

479. Plaintiff Collier is still a participant in Defendants’ diversion program and

6 cannot afford to pay the fees required to complete the diversion program.

7

480. Plaintiff Collier therefore requests that this Court enjoin Defendant TASC

8 from requiring her to take drug and alcohol tests solely because she cannot afford to

9 pay the fees necessary to complete the diversion program.

10

REQUEST FOR RELIEF

11

WHEREFORE, the Plaintiffs demand a jury trial for all issues so appropriate

12 and request this Court to issue the following relief:

13

A. That this action be certified as a class action pursuant to Rule 23 of the

14 Federal Rules of Civil Procedure, declaring Named Plaintiffs DeShawn Briggs, Mark

15 Pascale, and McKenna Stephens as representatives of their respective Classes and

16 Named Plaintiffs’ counsel as counsel for the Classes;

17

B. A judgment compensating the Plaintiffs and the Classes of similarly

18 situated individuals for the damages that they suffered as a result of the Defendants’

19 unconstitutional and unlawful conduct in an amount to be determined at trial;

20

C. A judgment granting the punitive damages authorized by statute based

21 on Defendant TASC’s willful and egregious violations of the law;

22

D. A judgment enjoining Defendants from further unconstitutional and

23 unlawful conduct against Named Plaintiff McKenna Stephens and the class she

24 represents;

25

E. A judgment enjoining Defendant TASC from further unconstitutional

26 conduct against Plaintiff Taja Collier;

27

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1

F. An order and judgment granting reasonable attorneys’ fees and costs

2 pursuant to 42 U.S.C. § 1988 and 18 U.S.C. § 1964; and

3

G. Such other and further relief as the Court deems just and proper.

4 DATED this 12th day of October, 2018.

5

Respectfully submitted,

6

OSBORN MALEDON, P.A. 7

Timothy J. Eckstein

8

Joshua D. Bendor

2929 N. Central Ave., Suite 2100

9

Phoenix, Arizona 85012-2793

10

CIVIL RIGHTS CORPS 11

/s/ Katherine Chamblee-Ryan

12

A. Dami Animashaun*

Katherine Chamblee-Ryan

13

910 17th Street NW, Second Floor

Washington, D.C. 20006 14

Attorneys for Plaintiffs 15

16

17

18

*Admitted to practice solely in New York. Not admitted in the District of

Columbia; practice limited pursuant to D.C. App. R. 49(c), with supervision by

19

Alec Karakatsanis, a member of the D.C. Bar.

20

21

22

23

24

25

26

27

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Certificate of Service

2

I hereby certify that on the 12th day of October, 2018, I caused a copy of the

3 foregoing document to be served on all parties by the Electronic Case Filing System

4 for the United State District Court for the District of Arizona.

5

6

s/ Katherine Chamblee-Ryan

Katherine Chamblee-Ryan

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

 
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1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 Deshawn Briggs, et al.,

No. CV-18-02684-PHX-EJM

10

Plaintiffs,

ORDER

11 v.

12 William Montgomery, et al.,

13

Defendants.

14

15

Pending before the Court are Defendants Maricopa County and Maricopa County

16 Attorney William Montgomery’s Motion to Dismiss (Doc. 34) and Defendant Treatment 17 Assessment Screening Center, Inc.’s Motion to Dismiss (Doc. 36). All appropriate 18 responses and replies have been filed, and the Court heard oral arguments from the parties

19 on May 22, 2019. For the reasons explained below, the Court will deny the motions.

20 I. FACTUAL AND PROCEDURAL BACKGROUND

21

Plaintiffs filed their first amended class action complaint (“FAC”) on October 12,

22 2018. (Doc. 20). Plaintiffs allege civil rights claims pursuant to 28 U.S.C. § 1983 and the 23 Fourth and Fourteenth Amendments of the United States Constitution and seek monetary 24 damages and injunctive relief. Plaintiffs are four named individuals who represent

25 themselves and a class of similarly situated people. Id. at 6–7. Plaintiffs’ allegations 26 concern a marijuana deferred prosecution program (“MDPP” or “the program”) operated 27 by the Maricopa County Attorney’s Office (“MCAO”) and Treatment Assessment

28 Screening Center (“TASC”). Id. ¶ 47. Plaintiffs also allege Defendant Bill Montgomery,

Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 2 of 42

1 the elected County Attorney (“CA”) for Maricopa County, is liable in his official capacity

2 for his role in operating and administering the diversion program, and that Montgomery is

3 the final policymaker for Maricopa County on matters relating to diversion programs. Id.

4 ¶ 45.

5

Plaintiffs allege that Defendants “jointly operate a possession of marijuana

6 diversion program that penalizes the poor because of their poverty.” Id. ¶ 1. Specifically,

7 Plaintiffs’ complaint alleges that:

8

7. The length of time a person spends in the diversion program

and whether the person ultimately completes the program and

9

avoids felony criminal prosecution depends on whether she can

pay the program’s required fees. 10

8. In order to complete the program and avoid felony criminal

11

prosecution, participants in the marijuana diversion program

must pay a fee of $950 or $1000. 12

9. Participants must also pay $15 or $17 for each drug and

13

alcohol test; they may be required to take as many as three or

four tests each week. 14

10. The program is two-tiered: people who meet program

15

requirements—completing a three-hour drug education

seminar and routine drug and alcohol testing—and are wealthy

16

enough to pay the $950 or $1000 program fee complete the

program in 90 days and are no longer subject to felony criminal

17

prosecution.

18

11. But participants who cannot pay the program fees are

forced to stay in the program for at least six months and until

19

they can pay off the money owed to MCAO and TASC, even

if they have satisfied every program requirement other than

20

payment.

21

12. During the “pay-only” period, participants remain subject

to felony criminal prosecution during the additional time they

22

are forced to remain in the diversion program.

23

13. These participants also remain subject to all of the

diversion program’s requirements. 24

14. These requirements include reporting to a TASC location,

25

as often as four times per week, so that the participant’s urine

can be collected and tested. 26

15. Participants who remain on diversion solely because of

27

their inability to pay program fees must also continue to pay

$15 or $17 each time they are required to submit to a drug and

28

alcohol test.

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1

16. The perverse result is that poor people are ultimately

charged more money—potentially hundreds of dollars more—

2

than similarly situated participants who can afford to pay to

finish the program in 90 days.

3

17. Participants who cannot afford to pay for diversion may

4

also be terminated from the program altogether and referred for

felony prosecution.

5

18. This can happen in at least two ways.

6

19. First, Defendants require diversion participants to make a

7

minimum monthly payment towards the $950 or $1000

program fees at a rate set by Defendant TASC.

8

20. A participant who fails to pay the minimum monthly

9

payment set by Defendant TASC can be terminated from the

program and prosecuted.

10

21. Defendants do not inquire into a participant’s ability to pay

11

before setting the minimum monthly fee.

12

22. Defendants’ policy does not include any exception for

participants who do not pay the minimum monthly amount

13

solely because they cannot afford it.

14

23. Second, participants are not allowed to take the drug and

alcohol tests the program requires if they cannot afford to pay

15

for them.

16

24. For example, if a participant cannot pay the $15 or $17 fee

for a drug and alcohol test, she is not allowed to take the test at

17

all.

18

25. Therefore, if a participant reports for a drug and alcohol

test without the required fee, she will be turned away, and she

19

will receive a violation for missing the test.

20

26. In other words, an unpaid drug and alcohol test is a failed

test.

21

27. If a participant misses too many drug and alcohol tests—

22

even if she missed them solely because she could not afford to

pay for them—she will be failed out of the diversion program

23

and prosecuted for felony possession of marijuana.

24

28. Defendants enforce these policies even when they know

that diversion participants are poor or even homeless, and even

25

when they know that participants are sacrificing basic

necessities to pay fees.

26

. . .

27

30. Diversion participants who alert TASC employees that they

28

cannot afford the required fees are told that they will be failed

from the program if they do not pay and to do whatever it takes

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1

to get the money.

2 Id. at 2–5 (footnote omitted).
3 Plaintiffs state five claims for relief: 1) wealth-based discrimination in violation of
4 the Fourteenth Amendment by Plaintiffs Briggs and Pascale and others similarly situated
5 against all Defendants for monetary damages; 2) wealth-based discrimination in violation
6 of the Fourteenth Amendment by Plaintiff Stephens and others similarly situated against
7 all Defendants for injunctive relief, and by Plaintiff Collier on her own behalf against
8 Defendant TASC for injunctive relief; 3) wealth-based discrimination in violation of the
9 Fourteenth Amendment by Plaintiff Collier against all Defendants for damages and against
10 Defendant TASC for injunctive relief; 4) unreasonable search and seizure in violation of
11 the Fourth and Fourteenth Amendments by Plaintiffs Briggs and Pascale and others
12 similarly situated against all Defendants for damages; and 5) unreasonable search and
13 seizure in violation of the Fourth and Fourteenth Amendments by Plaintiff Stephens and
14 others similarly situated against all Defendants for injunctive relief, and by Plaintiff Collier
15 on her own behalf against Defendant TASC for injunctive relief. (Doc. 20 at 47–51).
16 On November 20, 2018 Defendant TASC filed a motion to dismiss pursuant to Fed.
17 R. Civ. P. 12(b)(6). (Doc. 36). TASC alleges that: “(1) TASC cannot be liable for any of
18 the harm Plaintiffs allege; (2) even if TASC could be liable to Plaintiffs, Plaintiffs’
19 substantive claims (alleging violations of the Fourth and Fourteenth Amendments) fail as
20 a matter of law; and (3) even if Plaintiffs had a substantive claim for relief, Plaintiff Briggs’
21 claims are time-barred.” Id. at 1. TASC further states that at a minimum, Plaintiffs should
22 be required to amend their complaint to clarify their claims and eliminate immaterial
23 allegations in compliance with Fed. R. Civ. P. 8. Id.
24 Also on November 20, 2018, Defendants Maricopa County and William
25 Montgomery (“the County Defendants”) filed a motion to dismiss pursuant to Fed. R. Civ.
26 P. 12(b)(1) and 12(b)(6). (Doc. 34). The County Defendants allege that dismissal is
27 warranted for the following reasons:
28 (1) Because the County Attorney acts as a State official, not a

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1

County official, when he establishes and implements a

marijuana deferred prosecution program, Plaintiffs’ § 1983

2

Monell liability claims/requests for relief against the County

and County Attorney must be dismissed [Counts 1–5];

3

(2) 11th Amendment sovereign immunity bars § 1983 damages

4

claims against the County Attorney in his capacity as a State

official; further, the County Attorney in his capacity as a State

5

official is not a “person” for purposes of § 1983. Plaintiffs’ §

1983 damages claims against him thus must be dismissed

6

[Counts 1, 3 and 4];

7

(3) Because the County Attorney’s policies and practices in

establishing and implementing a marijuana deferred

8

prosecution program are prosecutorial functions, absolute

prosecutorial immunity bars Plaintiffs’ § 1983 damages claims

9

against the County Attorney [Counts 1, 3 and 4], requiring

concomitant dismissal of Plaintiffs’ redundant § 1983 damages

10

claims asserted against the County;

11

(4) Plaintiff Briggs’ claims [Counts 1 and 4] are statutorily

time-barred; and

12

(5) For the reasons set forth in Part IV of TASC’s Motion to

13

Dismiss, Plaintiffs fail to state claims for relief for alleged

wealth discrimination under the 14th Amendment’s Due

14

Process and Equal Protection Clauses or for alleged

unreasonable search and seizure under the 4th Amendment, as

15

a matter of law [Counts 1–5].

16 Id. at 1.1 The County Defendants join in parts IV and V of Defendant TASC’s motion to 17
dismiss. Id. 18
II. STANDARD OF REVIEW 19
Pursuant to Fed. R. Civ. P. 12(b)(6), the Court may grant a motion to dismiss when 20
the plaintiff fails to state a claim upon which relief can be granted. A complaint must 21
contain a “short and plain statement of the grounds for the court’s jurisdiction,” a “short 22
and plain statement of the claim showing that the pleader is entitled to relief,” and “a 23
demand for the relief sought.” Fed. R. Civ. P. 8(a). While Rule 8 does not demand factual 24
allegations, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me 25
accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “Threadbare recitals of a 26
cause of action, supported by mere conclusory statements, do not suffice.” Id. 27

28 1 The County Defendants later withdrew their absolute prosecutorial immunity argument. See Doc. 81.

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1

A dismissal for failure to state a claim “is proper only where there is no cognizable

2 legal theory or an absence of sufficient facts alleged to support cognizable legal theory.”

3 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001) (internal citation omitted); see also

4 Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (Rule 12(b)(6) dismissal

5 motion “can be granted only if it appears beyond doubt that the plaintiff can prove no set

6 of facts in support of his or her claim.”). However, “the court [is not] required to accept as

7 true allegations that are merely conclusory, unwarranted deductions of fact, or

8 unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.

9 2001).

10

To survive a motion to dismiss under Rule 12(b)(6), a pleading must allege facts

11 sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

12 550 U.S. 544, 555 (2007). A claim must be plausible, allowing the court to draw the

13 reasonable inference that the defendant is liable for the conduct alleged. Ashcroft, 129 S.

14 Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks

15 for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting

16 Twombly, 550 U.S. at 557). “Where a complaint pleads facts that are merely consistent

17 with a defendant’s liability, it stops short of the line between possibility and plausibility of

18 entitlement to relief.” Iqbal, 556 U.S. at 678.

19

“In adjudicating a Rule 12(b)(6) motion to dismiss, . . . a court does not resolve

20 factual disputes between the parties on an undeveloped record. Instead, the issue is whether

21 the pleading states a sufficient claim to warrant allowing the [plaintiffs] to attempt to prove

22 their case.” Coleman v. City of Mesa, 230 Ariz. 352, 363 (2012); see also Lee v. City of

23 Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (“factual challenges to a plaintiff’s

24 complaint have no bearing on the legal sufficiency of the allegations under Rule 12(b)(6)”),

25 overruling on other grounds recognized by Jack Loumena v. Walter P. Hammon, 2015 WL

26 7180679 (N.D. Cal. Nov. 16, 2015). Thus, Defendants’ motions do not require the Court

27 to make factual determinations regarding Plaintiffs’ indigency, or whether Plaintiffs have

28 proved that Defendants have a policy or policies that unconstitutionally discriminate

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1 against indigents. The Court only considers whether Plaintiffs have sufficiently stated their

2 claims to justify allowing those claims to move forward.

3

The Court must view the complaint in the light most favorable to the nonmoving

4 party, with every doubt resolved on his behalf, and with that party’s allegations taken as

5 true. See Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). Generally, the court

6 only considers the face of the complaint when deciding a motion under Rule 12(b)(6). See

7 Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002). Consideration

8 of matters outside the pleading converts the Rule 12(b)(6) motion to a Rule 56 motion for

9 summary judgment, unless one of two exceptions are met:

10

First, a court may consider material which is properly

11

submitted as part of the complaint on a motion to dismiss without converting the motion to dismiss into a motion for

summary judgment. If the documents are not physically

12

attached to the complaint, they may be considered if the

13

documents’ authenticity . . . is not contested and the plaintiff’s complaint necessarily relies on them. Second, under Fed. R.

14

Evid. 201, a court may take judicial notice of matters of public record.

15 Lee, 250 F.3d at 688–89 (internal quotations and citations omitted); see also Harris v. Cty.
16 of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“documents not attached to a complaint
17 may be considered if no party questions their authenticity and the complaint relies on those
18 documents.”). The Court “may take judicial notice of court filings, as they are matters of
19 public record, and ‘[i]t is also well established that a federal district court can take judicial
20 notice of its own records.’” Baca ex rel. Nominal Defendant Insight Enterprises, Inc. v.
21 Crown, 2010 WL 2812712, at *2 (D. Ariz. July 12, 2010) aff’d sub nom. Baca v. Crown,
22 458 F. App’x 694 (9th Cir. 2011) (citations omitted). “[While a] court may take judicial
23 notice of matters of public record without converting a motion to dismiss into a motion for
24 summary judgment . . . a court may not take judicial notice of a fact that is subject to
25 reasonable dispute.” Lee, 250 F.3d at 689. Here, the Court previously ruled that it shall take
26 judicial notice of Exhibits B–F attached to the County Defendants’ motion to dismiss and
27 that by so doing the Court does not convert the motion to dismiss into a motion for
28 summary judgment.

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1 III. DISCUSSION

2

Plaintiffs seek relief pursuant to 28 U.S.C. § 1983. “Section 1983 provides a cause

3 of action against any person who deprives an individual of federally guaranteed rights

4 ‘under color’ of state law.” Filarsky v. Delia, 566 U.S. 377, 383 (2012). “Anyone whose

5 conduct is ‘fairly attributable to the state’ can be sued as a state actor under § 1983.” Id.

6 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “To prevail on a claim

7 under § 1983, a plaintiff must show that (1) acts by the defendants, (2) under color of state

8 law, (3) deprived him of federal rights, privileges, or immunities, and (4) caused him

9 damage.” Platt v. Moore, 2018 WL 2058136, at *2 (D. Ariz. Mar. 15, 2018) (citing

10 Thornton v. City of St. Helens, 425 F.3d 1158, 1163–64 (9th Cir. 2005)), appeal filed April

11 12, 2019.

12

Plaintiffs’ claims concern a class of persons that Plaintiffs refer to as “pay-only

13 participants”2—persons who cannot afford to pay the MDPP fee within 90 days and are

14 required to stay on the program longer. Plaintiffs challenge three policies that apply to

15 indigent diversion program participants and allegedly caused the constitutional violations

16 at issue in this suit:

17

1) participants who are unable to pay minimum monthly

payments or fees for mandatory urine tests are terminated from

18

the program (the “wealth-based termination policy”); 2)

participants who cannot afford to pay the program fees in 90

19

days are subject to longer terms of intrusive supervision than

similarly-situated participants who are able to pay (the

20

“wealth-based extended supervision policy”); and 3)

participants who are supervised in the program solely due to

21

their inability to pay program fees are subject to routine

suspicionless urine testing for drugs and alcohol (the “wealth-

22

based extended urine testing policy”).

23 (Doc. 45 at 3–4) (internal citations omitted).
24 A. Defendant Treatment Assessment Screening Center, Inc.’s Motion to
25 Dismiss
26 i. Policy, Decision, or Custom
27

28 2 “‘Pay-only’ refers to a period of criminal supervision during which the person is supervised only because she has not paid all of her debt.” (Doc. 20 at 3 n.6).

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1

TASC first argues that it cannot be liable as an entity because it has not established

2 any policies that Plaintiffs may be challenging. TASC further states that Plaintiffs have

3 failed to allege any facts regarding policies that TASC adopted, or any custom that TASC

4 had the discretion to implement, that is so persistent and widespread that it became a

5 permanent and well-settled entity policy. (Doc. 36 at 7).

6

In Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), the Supreme Court held that

7 local governments and local government officials sued in their official capacity are

8 “persons” for purposes of § 1983 and may be held liable for constitutional violations arising

9 from a government policy or custom. In Tsao v. Desert Palace, Inc., 698 F.3d 1128 (9th

10 Cir. 2012), the Ninth Circuit held that Monell also applies to suits against private entities.

11 “To create liability under § 1983, the constitutional violation must be caused by a policy,

12 practice, or custom of the entity, or be the result of an order by a policy-making officer.”

13 Id. at 1139 (internal quotations and citations omitted); Monell, 436 U.S. at 690–91 (local

14 governments “can be sued directly under § 1983 for monetary, declaratory, or injunctive

15 relief where, as here, the action that is alleged to be unconstitutional implements or

16 executes a policy statement, ordinance, regulation, or decision officially adopted and

17 promulgated by that body’s officers . . . Moreover, . . . local governments . . . may be sued

18 for constitutional deprivations visited pursuant to governmental ‘custom’ even though such

19 a custom has not received formal approval through the body’s official decisionmaking

20 channels.”).

21

Thus, to state a claim against TASC under Monell and Tsao, Plaintiffs must show

22 that (1) TASC acted under color of state law, and (2) that the alleged constitutional

23 violation was caused by a policy or custom. Tsao, 698 F.3d at 1139. The Court finds that

24 Plaintiffs have pled enough facts to state a claim for entity liability against TASC sufficient

25 to survive a motion to dismiss.

26

First, Plaintiffs have sufficiently pled that TASC acted under color of state law via

27 its agreement with MCAO to operate the MDPP.3 The FAC alleges that MCAO and TASC

28 3 The court considers four tests to determine “whether a private [party’s] actions amount to state action: (1) the public function test; (2) the joint action test; (3) the state compulsion

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1 jointly operate the MDPP, that TASC has a contract with MCAO to operate, administer,

2 and supervise the program, and that TASC supervises all people whose prosecutions for

3 simple possession of marijuana have been diverted. (Doc. 20 ¶¶ 1, 47, 67).

4

The second thing that Plaintiffs must show is that TASC had a policy, custom, or

5 pattern that was the actionable cause of Plaintiffs’ injuries. Tsao, 698 F.3d at 1143. A policy

6 may be either formal or informal: “‘Congress included customs and usages [in § 1983]

7 because of the persistent and widespread discriminatory practices of state officials . . .

8 Although not authorized by written law, such practices of state officials could well be so

9 permanent and well settled as to constitute a ‘custom or usage’ with the force of law.’”

10 Monell, 436 U.S. at 691 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–168

11 (1970)). As this Court explained in Milke v. City of Phoenix, 2016 WL 5339693, at *15 (D.

12 Ariz. Jan. 8, 2016),

13

An informal policy . . . exists when a plaintiff can prove the

existence of a widespread practice that, although not

14

authorized by an ordinance or an express municipal policy, is

so permanent and well settled as to constitute a custom or usage

15

with the force of law. To be viable, a plaintiff must do more

than point to a single constitutional deprivation, a random act,

16

or an isolated event. Instead, a plaintiff . . . must show a pattern

of similar incidents in order for the factfinder to conclude that

17

the alleged informal policy was so permanent and well settled

as to carry the force of law.

18

19 (internal quotations and citations omitted). Thus, even if TASC does not have an official

20 policy, liability may be established “by acquiescence in a longstanding practice or custom

21 which constitutes the ‘standard operating procedure’ of the local governmental entity.” Jett

22 v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).

23

Here, the FAC alleges both formal and informal policies. Plaintiffs specifically

24 reference the MDPP client contract, which includes a provision stating that program

25 participants may be terminated and referred for prosecution for failure to pay the program

26 fees or failure to test as scheduled. (Doc. 20 ¶¶ 139, 140). The FAC also alleges informal

27

28

test; and (4) the governmental nexus test.” Tsao, 698 F.3d at 1140 (internal quotations and citation omitted). Because neither party argues this point, the Court will not address it

further here.

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Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 11 of 42

1 policies or practices: no one at TASC assesses a person’s ability to pay before referring the

2 person back for prosecution because they could not pay for urine tests; no one at MCAO

3 assesses ability to pay before prosecuting people who have failed diversion solely because

4 of their inability to pay; Defendants do not waive the program fee for anyone regardless of

5 financial circumstances; and Defendants contend that they allow for reduced fees for urine

6 screens, but in practice these reductions are almost never granted. (Doc. 20 at ¶¶ 151–154).

7

Accordingly, the Court rejects TASC’s argument that Plaintiffs have failed to plead

8 a persistent and widespread custom or practice such that it constitutes a permanent and

9 well-settled entity policy. (Doc. 36 at 8–9). TASC notes that neither Briggs nor Stephens

10 have alleged that they made any statements to TASC regarding their alleged inability to

11 pay; Pascale states that TASC deferred payment for his orientation fee and found him

12 ineligible for a reduction in testing fees; and Collier is the only plaintiff who alleges she

13 told TASC she could not pay and was not invited to apply for a reduction or waiver. TASC

14 contends that these allegations are insufficient to establish a persistent and widespread

15 practice. However, Plaintiffs state that they are not arguing that the indigent are entitled to

16 fee waivers; they are challenging TASC’s policies of requiring program participants to

17 remain on the program longer when they cannot afford to pay the program fee, and the

18 requirement that pay-only participants must also continue to pay for additional urine

19 screenings as long as they do remain on the program. Further, Plaintiffs are seeking to have

20 this matter certified as a class action. While the existence of a persistent and widespread

21 practice, policy, or custom will require discovery for Plaintiffs to prove their claims and to

22 establish a class, at this early stage in the proceedings, the FAC states sufficient allegations

23 to survive a motion to dismiss. See Milke, 2016 WL 5339693 at *18 (“A Monell claim must

24 be based on more than ‘a single constitutional deprivation, a random act, or an isolated

25 event.’ There must be ‘a pattern of similar incidents.’” (quoting Castro v. Cty. of Los

26 Angeles, 797 F.3d 654, 671 (9th Cir. 2015)).

27

Finally, the Court rejects TASC’s argument that it has no authority to establish

28 policies regarding the development or implementation of the MDPP because deferred

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1 prosecution programs are established by the state legislature and the Arizona Prosecuting

2 Attorneys’ Advisory Council (“APAAC”) establishes the program guidelines. (Doc. 36 at

3 8). These issues are discussed further below in the County Defendants’ motion to dismiss,

4 but the Court notes that Plaintiffs do not challenge the establishment of the program

5 generally—Plaintiffs challenge the three specific policies detailed above, and Plaintiffs

6 have pled that none of these policies were set by state law—they were jointly enacted by

7 the CA/MCAO and TASC.4

8

Accordingly, accepting Plaintiffs’ allegations as true, as the Court must on a motion

9 to dismiss, Plaintiffs have sufficiently pled a § 1983 claim for entity liability against TASC

10 based on the three challenged policies.

11

ii. Qualified Immunity

12

TASC alternatively argues that because Plaintiffs cannot bring a claim for entity

13 liability against it, to the extent Plaintiffs assert an individual claim against it, TASC is

14 shielded by qualified immunity. Plaintiffs contend that qualified immunity does not apply

15 because qualified immunity only protects individual employees, not corporate entities like

16 TASC.

17

“Qualified immunity is an immunity from suit.” Trevino v. Gates, 99 F.3d 911, 916

18 (9th Cir. 1996). It “shields government officials from civil damages liability unless the

19 official violated a statutory or constitutional right that was clearly established at the time

20 of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012); see also

21 Pearson v. Callahan, 555 U.S. 223, 231 (2009). The Supreme Court has “described the

22 doctrine’s purposes as protecting government’s ability to perform its traditional functions

23 by providing immunity where necessary to preserve the ability of government officials to

24 serve the public good or to ensure that talented candidates were not deterred by the threat

25 of damages suits from entering public service.” Richardson v. McKnight, 521 U.S. 399,

26 407–08 (1997) (internal quotations and citation omitted).

27 4 TASC further alleges that the CA is the final policymaker for Maricopa County on matters

28

relating to diversion programs, and because the CA acts on behalf of the State, Plaintiffs’ allegations concern State policies. (Doc. 36 at 8). This argument is addressed in section

B(i) below.

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1

Here, TASC relies on the Supreme Court’s decision in Filarsky v. Delia, 566 U.S.

2 377 (2012) for its argument that qualified immunity extends to non-government employees

3 working in close proximation with public employees. In Filarsky, the Court held that a

4 private attorney temporarily retained by the city was entitled to seek qualified immunity.

5 566 U.S. 377. The Court found that “immunity under § 1983 should not vary depending

6 on whether an individual working for the government does so as a full-time employee, or

7 on some other basis[,]” and noted that “[a]ffording immunity not only to public employees

8 but also to others acting on behalf of the government similarly serves to ensure that talented

9 candidates [are] not deterred by the threat of damages suits from entering public service.”

10 Id. at 389–90 (internal quotations and citations omitted). The Court also distinguished its

11 prior decision in Richardson, 521 U.S. 399, where it held that guards employed by a

12 privately-run prison facility were not entitled to seek qualified immunity. The Court

13 explained that “Richardson was a self-consciously ‘narrow[ ]’ decision” and “was not

14 meant to foreclose all claims of immunity by private individuals.” Filarsky, 566 U.S. at

15 393. Rather, “the particular circumstances of that case—‘a private firm, systematically

16 organized to assume a major lengthy administrative task (managing an institution) with

17 limited direct supervision by the government, undertak[ing] that task for profit and

18 potentially in competition with other firms’—combined sufficiently to mitigate the

19 concerns underlying recognition of governmental immunity under § 1983.” Id. (quoting

20 Richardson, 521 U.S. at 413).

21

The Court finds that this case is more like Richardson than Filarsky. Here, like in

22 Richardson, “the most important special government immunity-producing concern—

23 unwarranted timidity—is less likely present, or at least is not special, when a private

24 company subject to competitive market pressures operates a [deferred prosecution

25 program].” Richardson, 521 U.S. at 409. “In other words, marketplace pressures provide

26 [TASC] with strong incentives to avoid overly timid, insufficiently vigorous, unduly

27 fearful, or ‘nonarduous’ employee job performance.” Id. at 410. Further, TASC is a private

28 entity that entered into a contract with Maricopa County to “assume a major lengthy

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1 administrative task . . . with limited direct supervision by the government” and undertook

2 that task for profit and likely in competition with other providers of drug rehabilitation

3 services. See also Halvorsen v. Baird, 146 F.3d 680, 685–86 (9th Cir. 1998) (finding that

4 private firm providing municipality with involuntary commitment services for inebriates

5 was not entitled to qualified immunity under Richardson and noting that whether a firm is

6 for-profit or not-for-profit is immaterial because both compete for municipal contracts and

7 both have incentives to display effective performance). This case is clearly unlike Filarsky,

8 where the Supreme Court found qualified immunity for a private attorney retained by the

9 city for a limited period of time to assist with one aspect of an investigation.5

10

The Court also notes that Plaintiffs’ claims are against TASC as an entity, not

11 individual TASC employees. The Ninth Circuit has specifically rejected an expansion of

12 Filarsky to include immunity for all service contractors. Gomez v. Campbell-Ewald Co.,

13 768 F.3d 871 (9th Cir. 2014), aff’d, 136 S. Ct. 663 (2016), as revised (Feb. 9, 2016). In

14 Gomez, the court noted that Filarsky “did not establish any new theory,” and although it

15 provided a broad reading of qualified immunity, it was “applicable only in the context of

16 § 1983 qualified immunity from personal tort liability[,]” and thus was not available for

17 Telephone Consumer Protection Act claims against the defendant company. Id. at 881. The

18 court emphasized that “[w]here immunity lies, an injured party with an otherwise

19 meritorious tort claim is denied compensation, which contravenes the basic tenet that

20 individuals be held accountable for their wrongful conduct. Accordingly, immunity must

21 5 TASC also relies on Filarsky’s reasoning that:

22

Sometimes, as in this case, private individuals will work in

23

close coordination with public employees, and face threatened legal action for the same conduct . . . Because government

24

employees will often be protected from suit by some form of immunity, those working alongside them could be left holding

25

the bag—facing full liability for actions taken in conjunction with government employees who enjoy immunity for the same

26

activity.

27

566 U.S. at 391. This is of no moment, however, because Plaintiffs’ claims are against TASC and the County Defendants as entities, not individual employees. And, as discussed

28

further in section B below, the Court finds that the CA acted for the county, not the state, and that Plaintiffs have sufficiently pled a Monell claim against the county.

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1 be extended with the utmost care.” Id. at 882 (internal quotations and citation omitted).

2

The Court also finds the other cases TASC relies upon distinguishable. In Young v.

3 Cty. of Hawaii, 947 F. Supp. 2d 1087 (D. Haw. 2013), aff’d, 578 F. App’x 728 (9th Cir.

4 2014), the court held that a humane society officer qualified for qualified immunity where

5 the humane society was an independent contractor hired by the county to carry out its

6 animal control program. The court noted that “private defendants are not covered by

7 immunity unless ‘firmly rooted tradition’ and ‘special policy concerns involved in suing

8 government officials’ warrant immunity.” Id. (quoting Richardson, 521 U.S. at 404). In

9 Young, the officer was “duly appointed by law to execute search warrants and perform law

10 enforcement functions like those of the police.” Id. at 1108. Further, special policy

11 concerns supported granting immunity because “[a]nimal control officers, like police

12 officers, should be encouraged to perform their public duties without ‘unwarranted

13 timidity’ that may decrease their effectiveness in responding to public danger.” Id. (quoting

14 Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)). The court also distinguished the special

15 policy concerns at issue in Richardson, noting that there, “the prison performed its task

16 ‘independently, with relatively less ongoing direct state supervision[,]’ . . . [and s]uch

17 freedom allowed the private contractor prison to respond to market pressures to adjust

18 employee behavior.” Id. at 1109. In contrast, in Young, there was “close government

19 collaboration and supervision that restrict[ed] [the humane society’s] ability to respond as

20 a private firm to market pressures.” Id. Accordingly, the court concluded that the officer

21 was protected by qualified immunity because of the police department’s collaboration with

22 the humane society and its supervision over the humane society’s work. Id.6

23

In the present case, there is no “firmly rooted tradition” that would support

24 extending qualified immunity to TASC as a private entity operating a diversion program—

25 TASC is not performing a traditional prosecutorial function of determining who to

26 6 Defendants also cite Fabrikant v. French, 691 F.3d 193 (2d Cir. 2012) (court found

27

private animal rescue organization and its employees acted under color of state law and were entitled to qualified immunity) and Herrera v. Santa Fe Pub. Sch., 41 F. Supp. 3d

28

1027 (D. N.M. 2014) (court applied qualified immunity to private school security company based on Tenth Circuit precedent), but both are out of circuit cases that are not binding on

this Court.

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1 prosecute; it is carrying out the day to day operations of the program. Further, there is no

2 evidence of “close government collaboration and supervision” by the county defendants

3 over TASC’s work. TASC’s main argument in its motion is that none of the three policies

4 that Plaintiffs challenge exist, and if they do, the responsibility falls on the shoulders of the

5 CA. But there is no evidence before the Court at this time suggesting that the CA closely

6 supervises TASC in its day to day operations, such as meeting with program participants,

7 collecting payments, or administering urine screens.

8

In sum, the Court finds that the FAC states claims against TASC as a private entity,

9 not individual TASC employees, making qualified immunity inapplicable here. Further,

10 the principles that supported an extension of qualified immunity in Filarsky and Young are

11 not present here.

12

iii. Punitive Damages Claim

13

TASC contends that even if Plaintiffs could state a claim against it, the Court should

14 strike the punitive damages claim based on City of Newport v. Fact Concerts, Inc., 453

15 U.S. 247 (1981). In Newport, the Supreme Court held that “a municipality is immune from

16 punitive damages under 42 U.S.C. § 1983.” 453 U.S. at 271. The Court notes that TASC

17 fails to make a meaningful argument on this point and simply cites Newport without any

18 explanation. Plaintiffs maintain that punitive damages are warranted and that Newport is

19 inapplicable to cases of private entity liability.

20

Based on TASC’s lack of argument on this issue, and because this case is still in the

21 early stages and discovery may reveal evidence sufficient to warrant a punitive damages

22 award, the Court declines to dismiss Plaintiff’s punitive damages claim at this time. See

23 Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004) (“Normally we decline to address

24 an issue that is simply mentioned but not argued.”).

25

iv. Failure to State a Claim

26

a. Wealth discrimination

27

TASC argues that Plaintiffs fail to state a claim for wealth-based discrimination

28 under the Fourteenth Amendment because the indigent are not a suspect class and wealth

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1 is not a fundamental right.

2

“The Due Process Clause of the Fourteenth Amendment imposes procedural

3 constraints on governmental decisions that deprive individuals of liberty or property

4 interests.” Nozzi v. Hous. Auth. of City of Los Angeles, 806 F.3d 1178, 1190 (9th Cir. 2015),

5 as amended on denial of reh’g and reh’g en banc (Jan. 29, 2016). “Thus, the first question

6 in any case in which a violation of procedural due process is alleged is whether the plaintiffs

7 have a protected property or liberty interest and, if so, the extent or scope of that interest.”

8 Id. at 1190–91. “The property interests that due process protects extend beyond tangible

9 property and include anything to which a plaintiff has a ‘legitimate claim of entitlement.’”

10 Id. at 1191 (citation omitted).

11

“The Equal Protection Clause of the Fourteenth Amendment prohibits the

12 government from denying equal protection of the laws.” Buffin v. City and Cty. of San

13 Francisco, 2018 WL 424362, * 7 (N.D. Cal. Jan. 16, 2018). “While Equal Protection is

14 typically used to analyze government actions that draw a distinction among people based

15 on specific characteristics, it is also used if the government discriminates among people as

16 to the exercise of a fundamental right.” Id.

17

Financial need alone does not identify a suspect class for purposes of equal

18 protection analysis. Maher v. Roe, 432 U.S. 464, 471 (1977) (“In a sense, every denial of

19 welfare to an indigent creates a wealth classification as compared to nonindigents who are

20 able to pay for the desired goods or services.”); see also Rodriguez v. Cook, 169 F.3d 1176,

21 1179 (9th Cir. 1999) (“indigent prisoners are not a suspect class”). Thus, “where wealth is

22 involved, the Equal Protection Clause does not require absolute equality or precisely equal

23 advantages.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973).

24

Claims alleging “categorically worse treatment for the indigent” require a “hybrid

25 analysis of equal protection and due process principles.” Walker v. City of Calhoun, GA,

26 901 F.3d 1245, 1261 (11th Cir. 2018), cert. denied sub nom. Walker v. City of Calhoun,

27 Ga., 139 S. Ct. 1446 (2019). In Bearden v. Georgia, 461 U.S. 660, 665 (1983), the Supreme

28 Court explained that “[d]ue process and equal protection principles converge in the Court’s

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1 analysis in these cases.” Thus, “we generally analyze the fairness of relations between the

2 criminal defendant and the State under the Due Process Clause, while we approach the

3 question of whether the State has invidiously denied one class of defendants a substantial

4 benefit available to another class of defendants under the Equal Protection clause.” Id. In

5 Bearden, the Supreme Court held that the trial court erred in automatically revoking

6 probation when the petitioner could not pay his fine without first determining that the

7 petitioner had not made sufficient bona fide efforts to pay or that there were no adequate

8 alternate forms of punishment. 461 U.S. at 662. The Court noted that there was substantial

9 similarity between the question of whether considering indigent status in revoking

10 probation violates the Equal Protection Clause and the due process question of whether it

11 is fundamentally unfair or arbitrary for the State to revoke probation when an indigent is

12 unable to pay the fine. Id. at 665–66. Thus,

13

the issue cannot be resolved by resort to easy slogans or

pigeonhole analysis, but rather requires a careful inquiry into

14

such factors as “the nature of the individual interest affected,

the extent to which it is affected, the rationality of the

15

connection between legislative means and purpose, [and] the

existence of alternative means for effectuating the purpose . .

16

.”

17 Id. at 666–67 (quoting Williams v. Illinois, 399 U.S. 235, 260 (1970) (Harlan, J.,
18 concurring)); see also MacFarlane v. Walter, 179 F.3d 1131, 1139 (9th Cir. 1999)
19 (“Bearden delineated the factors to be balanced in examining an equal protection claim
20 involving a lack of financial resources and the working of the criminal justice system”),
21 cert. granted, opinion vacated sub nom. Lehman v. MacFarlane, 529 U.S. 1106 (2000).
22 “Both defendants granted probation and those accepted into preprosecution
23 diversion programs have a ‘conditional liberty’ interest—freedom from imprisonment or
24 freedom from prosecution and the possibility of a criminal record and imprisonment—
25 which may not be revoked in violation of the procedural and substantive requirements of
26 due process.” State v. Jimenez, 111 N.M. 782, 786 (1991) (citing Black v. Romano, 471
27 U.S. 606, 610 (1985)). “Similarly, the different treatment of individuals in the criminal
28 justice system based on ability to pay restitution as a condition of either probation or

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1 preprosecution diversion invokes the same concerns for a defendant’s right to equal

2 protection.” Id. (citing Bearden, 461 U.S. at 664). However, while “Bearden requires the

3 sentencing court to consider, before revoking probation for a nonwilful failure to pay a fine

4 or restitution, whether alternatives to imprisonment are adequate to serve the relevant state

5 interests in deterrence and punishment . . . different considerations apply to termination of

6 a preprosecution diversion agreement.” Id. at 787. “A defendant accepted into a diversion

7 program has a protected liberty interest in remaining free from prosecution . . . The relevant

8 alternatives in such a case, therefore, are not alternatives to imprisonment but alternatives

9 to termination from diversion and consequent prosecution.” Id.

10

Here, the Plaintiffs “have a ‘conditional liberty’ interest . . . [in] freedom from

11 prosecution and the possibility of a criminal record and imprisonment.” Jimenez, 111 N.M.

12 at 786. And, this interest can be impacted to a great extent: when pay-only participants are

13 required to stay in the program beyond 90 days solely because of inability to pay the

14 program fee, they remain subject to all of the program terms including prohibitions on

15 alcohol use, leaving the county or the state, and taking any prescription medication without

16 reporting it to TASC, plus the required urine screens. (Doc. 20 ¶ 118). Moreover,

17 participants live in fear of the ultimate consequence of being terminated from the program,

18 referred for felony prosecution, and sentenced to prison. While TASC argues that Plaintiffs

19 have not been absolutely deprived of the ability to complete the program, Plaintiffs have

20 indeed been absolutely deprived of the ability to complete the program in 90 days like

21 other, wealthier participants solely because they are unable to pay the program fee. See

22 Walker, 901 F.3d at 1261–62 (district court was wrong to apply heightened scrutiny

23 because pursuant to Rodriguez and the cases following it, “differential treatment by wealth

24 is impermissible only where it results in a total deprivation of a benefit because of

25 poverty[,]” and under the standing bail order, indigents suffered no absolute deprivation—

26 “they must merely wait some appropriate amount of time to receive the same benefit as the

27 more affluent.”).

28

Defendants contend that the program fees are rationally related to a legitimate

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1 government interest because the state has an interest in having program participants, rather

2 than taxpayers, fund the program. (Doc. 36 at 12). However, Plaintiffs’ claim is not, as

3 Defendants suggest, that the indigent are automatically entitled to fee waivers, or that the

4 initial fee determination must consider the individual’s financial status. (Doc. 36 at 13);

5 see Rodriguez, 169 F.3d at 1180 (“the Constitution only requires waiver of filing fees in a

6 narrow category of cases where the litigant has a ‘fundamental interest at stake.’” (quoting

7 M.L.B. v. S.L.J., 519 U.S. 102, 117 S. Ct. 555, 562 (1996))). Rather, Plaintiffs are

8 challenging the three specific policies about how the program fees are enforced against

9 those who cannot afford to pay them. (Doc. 67 at 20). Plaintiffs admit that it would be

10 rational for Defendants to create a payment plan and enforce it with civil debt-collection

11 remedies if needed, but the challenged policy is not just a payment plan, it requires

12 individuals to remain in the program and subject to all of its other terms and conditions.7

13 Id. Plaintiffs do not object to a payment schedule; they object to the onerous conditions

14 and extending the risk of prosecution. (Doc. 87 at 31).

15

Defendants further state that additional program interests include rehabilitation,

16 holding the offender accountable, and relieving the burden on the judicial system. (Doc. 36

17 at 10). However, none of these proffered reasons explains why participants who are unable

18 to pay the program fee within 90 days must stay on the program longer and to continue to

19 abide by all of the program rules, rather than being allowed to complete all of the non-

20 monetary program requirements and set up an extended payment plan until the fee is paid

21 off.8 And, as Plaintiffs note, “no rehabilitative or retributive interest is served by

22 terminating people who, but for their poverty, would have successfully completed the

23 program and avoided prosecution.” (Doc. 67 at 21).

24

25

7 At oral argument, counsel for Plaintiffs explained that you have to call TASC every day to see if you are required to report for a urine screen, and you can be tested up to four times

26

a week, with a cost of $15–17 each time. (Doc. 87 at 23). “So actually in a perverse way, just because you’re poor and you couldn’t pay the fees for 90 days, you ultimately have to

27

pay more to complete diversion than somebody who had the money to get off diversion faster.” (Doc. 87 at 23:17-20).

28

8 As Plaintiffs’ counsel stated, “[j]ust because of the size of someone’s pocketbook doesn’t change what kind of rehabilitation you need.” (Doc. 87 at 30:2-4).

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1

While the Court is not persuaded that there is a rational connection between the

2 government’s purpose and the means of effectuating that purpose, or that no adequate

3 alternative measures exist, the Court need not make a definitive finding on these issues at

4 this juncture. Plaintiffs have sufficiently pled a prima facie case of wealth discrimination

5 based on the policies that subject participants who are unable to pay the program fee to a

6 longer period of time in the MDPP and all of the conditions that come along with it,

7 including the urine screenings and the required fees for those screenings, and the ultimate

8 possibility of being failed from the program and referred for felony prosecution solely

9 because they are unable to pay the fees within 90 days. See Williams, 399 U.S. at 241–42

10 (“[o]nce the State has defined the outer limits of incarceration necessary to satisfy its

11 penological interests and policies, it may not then subject a certain class of convicted

12 defendants to a period of imprisonment beyond the statutory maximum solely by reason of

13 their indigency.”); see also Mueller v. State, 837 N.E.2d 198, 204 (Ind. Ct. App. 2005)

14 (“Completely foreclosing a benefit that the State offers to defendants . . . based solely on

15 an inability to pay a fee or fine, violates the Fourteenth Amendment . . . the argument that

16 the fees help offset the cost of running the pretrial diversion program is not sufficient to

17 establish a rational basis for distinguishing between the indigent and those able to pay the

18 fees.”); Moody v. State, 716 So.2d 562, 565 (Miss. 1998) (citing Bearden and holding that

19 “an indigent’s equal protection rights are violated when all potential defendants are offered

20 one way to avoid prosecution and that one way is to pay a fine, and there is no

21 determination as to an individual’s ability to pay such a fine . . . The automatic nature of

22 the fine is what makes it discriminating to the poor, in that only the poor will face jail

23 time.”); Jimenez, 111 N.M. at 784 (holding that under Bearden, “the state may terminate a

24 diversion agreement, even if the sole ground is the defendant’s nonwilful failure to make

25 restitution, but only if there are no adequate alternatives to termination which will meet the

26 state’s legitimate penological interests.”).

27

Further, while TASC contends that Plaintiffs’ conclusory allegation of inability to

28 pay is insufficient for an equal protection claim and that Plaintiffs must show that they

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1 made all reasonable efforts to pay but were unable to do so through no fault of their own,

2 the Court rejects TASC’s characterization of Plaintiffs’ claims as “conclusory.” Plaintiffs

3 have pled their financial circumstances in sufficient detail9 to support their claim that

4 “because of their impecunity they were completely unable to pay for some desired benefit,

5 and as a consequence, they sustained an absolute deprivation of a meaningful opportunity

6 to enjoy that benefit[]”—the opportunity to complete the program in 90 days like other,

7 wealthier participants and thereby be free of the conditions required for staying on the

8 program as well as the fear of being failed from the program, prosecuted, and jailed. San

9 Antonio Indep. Sch. Dist., 411 U.S. at 20; see also Bearden, 461 U.S. at 668 (distinguishing

10 situations where the probationer has willfully refused to pay or has failed to make sufficient

11 bona fide efforts to seek employment or borrow money—such situations “may reflect an

12 insufficient concern for paying the debt” and the state is then “justified in revoking

13 probation and using imprisonment as an appropriate penalty for the offense.”).

14

Finally, the Court finds the decision in Walker, 901 F.3d 1245, distinguishable.

15 There, the Eleventh Circuit considered a standing bail order whereby arrestees were

16 released immediately if they were able to post bail, but arrestees who did not post bail

17 immediately were held for 48 hours until a bail hearing took place. Arrestees who could

18 prove indigency at the hearing were released on a recognizance bond. The court found that

19 the claim was properly analyzed under a hybrid due process and equal protection

20 framework—while the Eighth Amendment prohibits excessive bail, plaintiff challenged

21 “not the amount and conditions of bail per se, but the process by which those terms are set,

22 which [plaintiff] alleges invidiously discriminate against the indigent.” Id. at 1258–60. The

23 court concluded that under the standing bail order, indigents suffered no absolute

24 deprivation—“they must merely wait some appropriate amount of time to receive the same

25 benefit as the more affluent.” Id. at 1261–62. Here, like in Walker, Plaintiffs do not

26 challenge the amount of the program fees per se, but the method of how the fees are

27 collected. But unlike Walker, in the present matter Plaintiffs are not merely waiting “some

28 9 See FAC (Doc. 20 ¶¶ 31–36, 215–17, 240–45, 260–62, 271, 307–10, 342–43, 348, 359, 363, 377–81, 407, 409).

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1 appropriate amount of time to receive the same benefit as the more affluent.” The Walker

2 court found that a 48-hour detention period was reasonable for those unable to immediately

3 post bail, but here, Plaintiffs are required to spend double the amount of time or more on

4 diversion simply because they are unable to pay. Extending an individual’s time in the

5 program by several months can hardly be considered appropriate even under the standard

6 of rational basis review.

7

“The sine qua non of a Bearden-. . . style claim . . . is that the State is treating the

8 indigent and the non-indigent categorically differently. Only someone who can show that

9 the indigent are being treated systematically worse solely because of [their] lack of

10 financial resources,—and not for some legitimate State interest—will be able to make out

11 such a claim.” Walker, 901 F.3d at 1260 (internal quotations and citation omitted). The

12 FAC makes sufficient allegations, if taken as true, to support such a claim.10 See Mueller,

13 837 N.E.2d at 205 (“The concept that our criminal justice system should be operated as far

14 [sic] as reasonably possible without regard to a defendant’s financial resources is axiomatic

15 and beyond dispute. Allowing some defendants and not others to completely avoid

16 prosecution and a potential criminal conviction, based solely on their respective abilities to

17 pay certain fees, violates this fundamental principle.”); San Antonio Indep. Sch. Dist., 411

18 U.S. at 88–89 (Marshall, J., dissenting) (“It is, of course, true that the Constitution does not

19 require precise equality in the treatment of all persons. . . . But this Court has never

20 suggested that because some ‘adequate’ level of benefits is provided to all, discrimination

21 in the provision of services is therefore constitutionally excusable. The Equal Protection

22 Clause is not addressed to the minimal sufficiency but rather to the unjustifiable

23

24

10 The parties also dispute whether rational basis review or some form of heightened scrutiny applies to Plaintiffs’ claims. It is clear from this Court’s review of the case law

25

that the Court must apply Bearden’s four factors to Plaintiffs’ Fourteenth Amendment claims, and that the Bearden framework requires something more than traditional rational

26

basis review. See MacFarlane, 179 F.3d 1141 (explaining that Bearden requires “heightened scrutiny” and that the Bearden factors must also be weighed); Buffin, 2018

27

WL 424362 at * 9 (applying “heightened review” to wealth-based detention challenge); see also San Antonio Indep. Sch. Dist., 411 U.S. at 117 (Marshall, J., dissenting) (noting

28

that the Supreme Court “has frequently recognized that discrimination on the basis of wealth may create a classification of a suspect character and thereby call for exacting

judicial scrutiny.”).

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Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 24 of 42

1 inequalities of state action. It mandates nothing less than that all persons similarly

2 circumstanced shall be treated alike.” (internal quotations and citation omitted)); see also

3 MacFarlane, 179 F.3d at 1141 (“crucial factor” was that additional incarceration was

4 caused solely by the petitioners’ indigency).

5

b. Fourth Amendment

6

TASC argues that Plaintiffs’ claims in Counts Four and Five regarding the urine

7 screenings are solely a Fourteenth Amendment issue, not a Fourth Amendment issue,

8 because Plaintiffs are not challenging the urine tests per se, but the process by which

9 participants are able to complete the tests. (Doc. 36 at 15–16). Plaintiffs contend that they

10 have stated a valid Fourth Amendment claim based on Defendants’ policy that requires

11 pay-only participants (who must remain in the program longer than 90 days) to continue to

12 submit to urine screens. Plaintiffs allege this is a suspicionless search that only applies to

13 the indigent because they are unable to pay the program fee.

14

“The touchstone of the Fourth Amendment is reasonableness, and the

15 reasonableness of a search is determined by assessing, on the one hand, the degree to which

16 it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed

17 for the promotion of legitimate governmental interests.” United States v. Knights, 534 U.S.

18 112, 118–19 (2001) (internal quotations and citation omitted); see also United States v.

19 Scott, 450 F.3d 863, 867 (9th Cir. 2006) (“Under modern Fourth Amendment juris-

20 prudence, whether a search has occurred depends on whether a reasonable expectation of

21 privacy has been violated.”). “Usually, Fourth Amendment reasonableness means that a

22 search or seizure must be supported by probable cause, though pat-downs and similar

23 minor intrusions need only be supported by reasonable suspicion.” Scott, 450 F.3d at 868.

24 However, the court may “relax these requirements when special needs, beyond the need

25 for normal law enforcement, make an insistence on the otherwise applicable level of

26 suspicion impracticable.” Id. (internal quotations and citations omitted).

27

In Scott, 450 F.3d 863, the court considered whether warrantless searches, including

28 drug testing, imposed as a condition of pretrial release, required a showing of probable

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Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 25 of 42
1 cause, despite the defendant’s consent to the search conditions when he signed the pretrial 2 release form. The court noted that “[w]hile government may sometimes condition benefits 3 on waiver of Fourth Amendment rights . . . its power to do so is not unlimited.” Id. at 867– 4 68. Thus, “Scott’s consent to any search is only valid if the search in question (taking the 5 fact of consent into account) was reasonable.” Id. at 868; but see Knights, 534 U.S. at 119 6 (“a court granting probation may impose reasonable conditions that deprive the offender 7 of some freedoms enjoyed by law-abiding citizens). The Scott court rejected the 8 government’s argument that the drug tests were justified by special needs: (1) protecting 9 the community from criminal defendants released pending trial, and (2) ensuring the 10 defendants appeared at trial. 450 F.3d at 869. As to protecting the community, the court 11 found this was the exact opposite of a special need because the government interest in 12 preventing crime by anyone is legitimate and compelling and is a quintessential general 13 law enforcement purpose. Id. at 870. While the court found the second reason—ensuring 14 appearance at trial—more persuasive, the court still found that “the connection between 15 the object of the test (drug use) and the harm to be avoided (non-appearance in court) [was] 16 tenuous.” Id. The court further found that the search was not reasonable under the totality 17 of the circumstances approach: pretrial releasees have greater privacy and liberty interests 18 than probationers, and “the assumption that Scott was more likely to commit crimes than 19 other members of the public, without an individualized determination to that effect, is 20 contradicted by the presumption of innocence[.]” Id. at 872–74; contra Knights, 534 U.S. 21 at 120 (“the very assumption of the institution of probation is that the probationer is more 22 likely than the ordinary citizen to violate the law” (internal quotations and citation 23 omitted)). The court thus concluded that because there was no probable cause to test Scott 24 for drugs, the drug test violated the Fourth Amendment. Scott, 450 F.3d at 874; contra 25 Knights, 534 U.S. 112 (holding that a warrantless search of a probationer’s apartment, 26 supported by reasonable suspicion and that the probationer consented to as a condition of 27 his probation, was reasonable under the Fourth Amendment based on the totality of the 28 circumstances).
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1

Here, TASC argues that the government’s interests in reducing recidivism,

2 rehabilitation, protecting society, and ensuring that program participants are clean from

3 drugs and alcohol at the time they complete the program outweighs Plaintiffs’ privacy

4 interests. Plaintiffs counter that there is no legitimate government interest because

5 Defendants have determined that the government interests in punishment, deterrence, and

6 recidivism can be met by successfully completing the program in 90 days, and the only

7 reason Plaintiffs were required to stay on the program beyond 90 days and submit to

8 additional urine screenings was due to their inability to pay the program fees. TASC

9 alternatively argues that Plaintiffs’ consent made the searches permissible, but as Plaintiffs

10 note, consent is not the only factor because the Court must also consider whether the

11 consent was voluntary and whether the condition being consented to was constitutional.

12 See Scott, 450 F.3d at 866 (“The ‘unconstitutional conditions’ doctrine limits the

13 government’s ability to exact waivers of rights as a condition of benefits, even when those

14 benefits are fully discretionary.” (citation omitted)) and 871 (“Scott’s assent to his release

15 conditions does not by itself make an otherwise unreasonable search reasonable.”). The

16 Court finds that these are issues of factual dispute that cannot be resolved at this time.

17 Plaintiffs have adequately pled a claim under the Fourth Amendment sufficient to survive

18 Defendants’ motion to dismiss. Discovery will reveal evidence that will enable the finder

19 of fact to determine whether the government’s interest does outweigh the Plaintiffs’

20 privacy interests, whether the special needs exception applies, and whether Plaintiffs’

21 consent to the urine screens as part of the MDPP’s terms made the searches permissible.

22

c. Statute of limitations

23

TASC argues that Plaintiff Briggs’ claims are barred for the reasons set forth in the

24 County Defendants’ motion to dismiss. The Court will address this argument in Section

25 B(iii) below.

26

v. Rule 8

27

Finally, TASC argues that if the Court does not dismiss Plaintiffs’ claim(s) pursuant

28 to Rule 12(b)(6), Plaintiffs should be required to amend and streamline their complaint to

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1 comply with Rule 8(a) and (d)(1). TASC contends that the 480-paragraph, 53-page

2 complaint is “verbose, confusing, contains numerous irrelevant facts . . . citations to news

3 articles . . . and references to an unrelated contract” and that “it is unclear which allegations

4 in the FAC Plaintiffs deem relevant to their claims because each alleged cause of action

5 simply contains conclusory allegations of violations of Plaintiffs’ constitutional rights . . .”

6 (Doc. 36 at 20–21). Plaintiffs contend that they have explained the challenged policies in

7 detail (Doc. 20 ¶¶ 120–34, 135–52), that each count specifies the challenged policy that

8 harmed the plaintiff and what relief is sought (Id. at ¶¶ 445–80), and that the information

9 Defendants challenge provides background on the policies (Id. at ¶¶ 56–61), offers sources

10 for allegations (Id. at n.3–6), and explains the relationship between MCAO and TASC (Id.

11 at ¶¶ 175–177).

12

A complaint must contain a “short and plain statement of the grounds for the court’s

13 jurisdiction,” a “short and plain statement of the claim showing that the pleader is entitled

14 to relief,” and “a demand for the relief sought . . .” Fed. R. Civ. P. 8(a); Johnson v. City of

15 Shelby, Miss., 574 U.S. 10, 135 S. Ct. 346, 346 (2014) (“Federal pleading rules call for ‘a

16 short and plain statement of the claim showing that the pleader is entitled to relief,’ . . .

17 they do not countenance dismissal of a complaint for imperfect statement of the legal

18 theory supporting the claim asserted.”); McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.

19 1996) (the complaint must set forth “who is being sued, for what relief, under what theory,

20 with enough detail to guide discovery”). “[A] dismissal for a violation under Rule 8(a)(2),

21 is usually confined to instances in which the complaint is so verbose, confused and

22 redundant that its true substance, if any, is well disguised.” Hearns v. San Bernardino

23 Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (internal quotations and citations

24 omitted).

25

The Court declines to require Plaintiffs to amend their complaint. While the FAC is

26 lengthy and includes some extraneous background information that is not material to the

27 claims for relief, the Court will allow this action to proceed forward on the FAC. See

28 Hearns, 530 F.3d at 1127 (district court abused its discretion by dismissing FAC with

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1 prejudice solely because of its length; “although each [complaint] set forth excessively

2 detailed factual allegations, they were coherent, well-organized, and stated legally viable

3 claims”); contra McHenry v. Renne, 84 F.3d 1172, 1177–78 (9th Cir. 1996) (affirming

4 district court’s dismissal of complaint with prejudice where complaint was “argumentative,

5 prolix, replete with redundancy, and largely irrelevant,” consisted “largely of immaterial

6 background information,” and “Despite all the pages, requiring a great deal of time for

7 perusal, one cannot determine from the complaint who is being sued, for what relief, and

8 on what theory, with enough detail to guide discovery.”); Nevijel v. N. Coast Life Ins. Co.,

9 651 F.2d 671, 674 (9th Cir. 1981) (affirming district court’s dismissal where complaint

10 was “verbose, confusing and conclusory”). Here, despite its length, “[t]he [FAC] is

11 logically organized, divided into a description of the parties, a chronological factual

12 background, and a presentation of enumerated legal claims, each of which lists the liable

13 Defendants and legal basis therefor.” Hearns, 530 F.3d at 1132. While it does contain some

14 “excessive detail”, the FAC is “intelligible and clearly delineate[s] the claims and the

15 Defendants against whom the claims are made.” Id.

16

Further, the Court’s Notice to the Parties of the MIDP project and General Order

17 17-08 states that the parties are required to provide “information as to facts that are relevant

18 to the claims and defenses in the case,” and also allows a party to limit its response as long

19 as the party explains the basis of the objection. (Doc. 5 at 4). General Order 17-08 also

20 specifies exactly what information must be provided in the mandatory initial discovery

21 requests, including documents “that you believe may be relevant to any party’s claims or

22 defenses,” and requires the parties to state the relevant facts and legal theories supporting

23 their claims and defenses. Id. at 7–8. Given these provisions, it should be clear to all parties

24 what information must be disclosed, and exchanging MIDP responses will help clarify the

25 facts and legal theories supporting each party’s claims and defenses, to the extent that those

26 may be unclear.

27 . . .

28 . . .

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1

B. Defendants Maricopa County and Maricopa County Attorney William

2

Montgomery’s Motion to Dismiss

3

i. Monell Claims

4

Defendants first argue that Plaintiffs’ § 1983 Monell claims fail because the County

5 Attorney acts on behalf of the State, not the County, when he establishes and implements

6 the MDPP. (Doc. 34 at 12). Thus, Defendants argue that Plaintiffs’ claims against Maricopa

7 County and the CA in his official capacity11 fail as a matter of law and must be dismissed

8 with prejudice. Id. at 13.

9

“To hold a local government liable for an official’s conduct, a plaintiff must first

10 establish that the official (1) had final policymaking authority ‘concerning the action

11 alleged to have caused the particular constitutional or statutory violation at issue’ and (2)

12 was the policymaker for the local governing body for the purposes of the particular act.”

13 Weiner v. San Diego Cty., 210 F.3d 1025, 1028 (9th Cir. 2000) (quoting McMillian v.

14 Monroe Cty., Ala., 520 U.S. 781, 785 (1997)).

15

a. Whether the CA acts for the state or the local government

16

“‘Ordinarily, an official designated as an official of a county . . . is a county official

17 for all purposes.’” Platt, 2018 WL 2058136, at *17 (quoting Ceballos, 361 F.3d at 1182).

18 “Under Arizona law, a county attorney is an officer of the county.” Id. (citing Ariz. Rev.

19 Stat. § 11-401). “However, some county officials may serve the county and the state.” Id.

20 “In this situation, the court determines whether the officer is a state or county official by

21 reviewing state law to determine whether the officer’s alleged actions fit within the range

22 of his state or county functions.” Id.12

23 11 “[O]fficial-capacity suits generally represent only another way of pleading an action

24

against an entity of which an officer is an agent[.]” Monell, 436 U.S. at 601 n.55; see also McMillian, 520 U.S. at 785 n.2 (“a suit against a governmental officer in his official

25

capacity is the same as a suit against [the] entity of which [the] officer is an agent” and “victory in such an official-capacity suit imposes liability on the entity that [the officer]

26

represents” (internal quotations and citations omitted)). 12 In Platt, the court found that the defendant acted for the state when he pursued

27

uncontested forfeiture of plaintiff’s car, and therefore the county was not liable under Monell for the officer’s actions. The court based this conclusion on Arizona statutes: A.R.S.

28

§ 11-532 (county attorneys conduct prosecutions on behalf of the state); § 14-4301(1) (“attorney for the state” is defined as “an attorney designated by . . . a county attorney . . .

to investigate, commence, and prosecute” a forfeiture action); and § 13-4309 (attorney for

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1

In McMillian, the parties agreed that the sheriff had final policy making authority

2 in the area of law enforcement, but disputed whether the sheriff was a policymaker for the

3 county or for the state when acting in a law enforcement capacity. 520 U.S. at 785. The

4 Court explained that this inquiry is guided by two principles: First, the question is not

5 whether the official acted for the state or the county “in some categorical, ‘all or nothing’

6 manner[; o]ur cases . . . instruct us to ask whether government officials are the final

7 policymakers for the local government in a particular area, or on a particular issue.” Id.

8 “Second, our inquiry is dependent on an analysis of state law.” Id. at 786.

9

Thus, in the present matter, “Maricopa County’s liability on [Plaintiffs’ claims]

10 turns on whether the Maricopa County Attorney was acting ‘as a policymaker for the state

11 or for the county’ when engaging in the culpable action or inaction.” Milke, 2016 WL

12 5339693 at *16 (quoting Goldstein v. City of Long Beach, 715 F.3d 750, 753 (9th Cir.

13 2013)); see also Platt, 2018 WL 2058136, at *17. “‘This determination is made on a

14 function-by-function approach by analyzing under state law the organizational structure

15 and control over the district attorney.’” Id. (quoting Goldstein, 715 F.3d at 753). “The

16 precise level of control, however, is not dispositive as the determination turns on whether

17 the county attorney ‘was acting on behalf of the state or the county’ when setting the

18 harmful policy.” Id. (quoting Goldstein, 715 F.3d at 755).

19

The parties vigorously dispute whether the CA was acting on behalf of the state or

20 the county for purposes of the challenged policies. The District of Arizona’s decision in

21 Milke is instructive:

22

Both the Arizona Constitution and Arizona statute describe

county attorneys as county officers. Ariz. Const. art. XII, § 3;

23

A.R.S. § 11-401. County attorneys are elected by the voters of

each county and county attorneys must reside in the county

24

where they are elected. Ariz. Const. art. XII, § 3; A.R.S. § 11-

404. County attorneys’ salaries are fixed by the county boards

25

of supervisors. Ariz. Const. art XII, § 4. And the boards of

supervisors are responsible for “[s]upervising] the official

26

conduct” of county attorneys. A.R.S. § 11-251. These

“structural provisions provide a helpful starting point”

27

indicating county attorneys are local officials but these

provisions are not enough on their own. Goldstein, 715 F.3d at

28

the state may make uncontested forfeiture proceedings available).

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1

755. The Court must also conduct a “functional inquiry”

regarding actual job duties and identify who exercises control

2

over county attorneys. Id.

3

In Arizona, a county attorney is responsible for the

appointment of “deputies, stenographers, clerks and assistants

4

necessary to conduct the affairs of” the county attorney’s

office. A.R.S. § 11-409. The county board of supervisors must

5

approve all appointments and the board sets the appointees’

salaries. Id. As for fiscal matters, a county attorney must

6

“[d]eliver receipts” to the board of supervisors “for monies or

property received in the county attorney’s official capacity.”

7

A.R.S. 11-532. A county attorney also acts as a “legal advisor

to the board of supervisors” as well as the attorney for school

8

districts and the community college district. Id. Arizona

counties also have a policy of indemnifying county officers and

9

employees. (Doc. 46 at 20). In terms of prosecutions, a county

attorney must “[a]ttend the superior and other courts within the

10

county and conduct, on behalf of the state, all prosecutions for

public offenses.” A.R.S. § 11-532 (emphasis added). Thus, in

11

most situations a county attorney appears to be acting as a local

official, reporting to a local board of supervisors and subject to

12

control by the local board of supervisors. A county attorney is,

however, explicitly identified as acting on behalf of the state

13

when prosecuting crimes.

14

A county attorney is also subject to a limited degree of control

by the Arizona Attorney General. The Arizona Attorney

15

General serves as the “chief legal officer of the state” and has

“charge of and direct[s] the department of law.” A.R.S. § 41-

16

192. The “department of law” is “composed of the attorney

general and the subdivisions of the department” created by law.

17

A.R.S. § 41-193. The department of law is responsible for

prosecuting and defending “in the supreme court all

18

proceedings in which the state or an officer thereof in his

official capacity is a party.” Id. In addition, “[a]t the direction

19

of the governor, or when deemed necessary by the attorney

general,” the department of law must “prosecute and defend

20

any proceeding in a state court other than the supreme court in

which the state or an officer thereof is a party or has an

21

interest.” Id. While the department of law “[e]xercise[s]

supervisory powers over county attorneys of the several

22

counties in matters pertaining to that office,” the Attorney

General can only “require reports [from county attorneys]

23

relating to the public business” of their offices. Id. In other

words, neither the Attorney General nor the department of law

24

has day-to-day control over the operation of county attorneys’

offices.

25

26 Milke, 2016 WL 5339693 at *16–17; see also Puente Arizona, 2016 WL 6873294 at *24

27 (noting Arizona law provisions indicating generally that CA is an officer of the county, but

28 that Ariz. Rev. Stat. § 11-532 “provides a clear answer” that CA conducts prosecutions on

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1 behalf of the state). In Milke the District of Arizona further noted that,

2

Viewed as a whole, the foregoing situation is very similar to

that presented under California law as explored in Goldstein v.

3

City of Long Beach, 715 F.3d 750 (9th Cir. 2013). In

California, the Attorney General has “direct supervision over

4

every district attorney” but that was deemed evidence of only

a “limited” amount of control. Id. at 756. The California

5

Attorney General is “limited to requiring a district attorney to

make reports,” which is “far short of a power to dictate policy

6

to district attorneys statewide.” Id. In addition, the California

“Attorney General is not given the power to force a district

7

attorney to act or adopt a particular policy, but instead may step

in and prosecute any violations of law himself or herself.” Id.

8

at 757. Finally, California law requires counties, not the state,

“defend and indemnify the district attorney in an action for

9

damages.” Id. at 758. Based on all of these provisions, the

Ninth Circuit concluded a California “district attorney acts on

10

behalf of the state when conducting prosecutions,” but a

district attorney “represents the county when establishing

11

administrative policies and training related to the general

operation of the district attorney’s office.” Id. at 759-60.

12

13 Milke, 2016 WL 5339693 at *17. Thus, in Milke we concluded that “[b]ased on the

14 substance of Arizona law, and the similarities between the situation in Arizona and

15 California, the Maricopa County Attorney is a local policymaker when it comes to

16 administrative policies such as direct supervision of other prosecutors and official

17 policies.” Id. Therefore, “[b]ecause Milke’s Monell claim [was] based on such

18 administrative policies . . . the Maricopa County Attorney can be sued in his capacity as a

19 local policymaker for Maricopa County.” Id.

20

Here, Defendants argue that under Arizona law, the CA acts for the state when he

21 prosecutes offenders for felony possession of marijuana, and that state laws authorizing the

22 establishment and implementation of the MDPP depend upon the CA’s role as a prosecutor

23 for the state. (Doc. 34 at 13–14). Specifically, the CA decides whether (a) there will be a

24 MDPP, (b) an offender is eligible for the MDPP program, (c) an offender is offered

25 participation in the MDPP, and (d) an offender has completed or failed the program. Id. at

26 14. Defendants contend that “[b]ecause these prosecutorial decisions and actions effectuate

27 the disposition of justiciable criminal charges per § 13-3405 against eligible offenders, they

28 fall entirely within the prosecutorial function of the County Attorney.” (Doc. 34 at 14).

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1

While there is no doubt that the CA acts for the state when conducting prosecutions,

2 it does not follow that the CA also acts for the state when he exercises his policymaking

3 authority to establish and implement deferred prosecution programs, or when he set the

4 specific policies at issue in this suit.13 The difference turns on whether the CA is performing

5 a prosecutorial function or an administrative function. As the court noted in Goldstein,

6 “[t]here can be a ‘meaningful analytical distinction’ between policies and training relating

7 to prosecutorial functions and an index made and maintained as an administrative matter.”

8 715 F.3d at 762 (challenge focused on failure to create index of informants, their reliability,

9 and benefits provided to them, and failure to train prosecutors to use index). Here, like in

10 Goldstein, “the local administrative policies challenged by [Plaintiffs] are distinct from the

11 prosecutorial act” and “[t]he conduct at issue . . . does not involve prosecutorial strategy,

12 but rather administrative oversight of systems used to help prosecutors comply with their

13 constitutional duties.” 715 F.3d at 759, 762. Stated another way, the issue in this suit is not

14 the CA’s decision whether to prosecute an individual for possession of marijuana or refer

15 him or her to the MDPP, but his role in establishing and implementing the MDPP and its

16 allegedly discriminatory policies. As the court noted in Goldstein, “several circuits have

17 come to the same conclusion that we reach here, that district attorneys act as county officers

18 when deciding administrative policy and procedures related to training or supervision, even

19 though they act as state officers when conducting prosecutions.” 715 F.3d at 765

20 (Reinhardt, J., concurring) (collecting cases); see also Weiner, 210 F.3d at 1031 (finding

21 that under California law, district attorney acts for the state when deciding whether to

22 prosecute, but also noting that district attorney is not a state officer for all purposes); Del

23 Campo v. Kennedy, 491 F. Supp. 2d 891, 899 (N.D. Cal. Dec. 5, 2006) (“The role of the

24 prosecutor encompasses all actions in relation to preparing to prosecute, prosecuting crimes

25 and establishing policy and training employees in this area.” (internal quotations and

26 citation omitted)).

27 13 While A.R.S. § 11-365 states that the CA has sole discretion to decide whether to divert

28

or defer prosecution of an offender, which arguably implicates the CA’s role as a prosecutor for the state, this case is not about a prosecutorial discretion function.

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1

In Del Campo, the court concluded that the district attorney acted as a local

2 policymaker when contracting with a private organization to administrate a bad check

3 writers diversion program. The court looked to the diversion program statutes and noted

4 several important factors in reaching this conclusion: Under California law, the decision to

5 implement diversion programs is left “to the county board of supervisors, conditioned on

6 the approval of the district attorney, in order to meet the individual needs of each county.”

7 491 F. Supp. 2d at 899–90. And, “[t]he purpose of conditioning the program’s

8 implementation on the district attorney’s approval was to allow the district attorney to

9 retain discretionary power over eligibility requirements, not to couch the entire program

10 within the district attorney’s prosecutorial power.” Id. at 900. Thus, “[t]he history of the

11 statutory scheme leads the Court to conclude that the legislature had no intention of

12 implementing a state-wide diversion program. Instead, the legislature reinforced the local

13 aspect of the diversion program . . .” Id. The court found that the district attorney’s

14 decisions to contract with a private entity, structure the distribution of work, and run the

15 program were “purely administrative decisions that have no connection to the District

16 Attorney’s role as a prosecutor.” Id. Thus, the alleged factual basis for the lawsuit was not

17 connected to the district attorney’s prosecutorial function. Id.

18

Here, like in Del Campo, the decision whether to implement a diversion program is

19 left to the local county. See A.R.S. § 11-361 (A “deferred prosecution program” is defined

20 as “a special supervision program in which the county attorney of a participating county

21 may divert or defer, before a guilty plea or a trial, the prosecution of a person who is

22 accused of committing a crime . . .” (emphasis added)); A.R.S. § 11-362(A) (The program

23 “shall be administered by the county attorney of each participating county according to the

24 guidelines established by the Arizona prosecuting attorneys’ advisory council.” (emphasis

25 added)); see also A.R.S. § 11-363 (allowing counties, in their discretion, to establish a

26 county attorney deferred prosecution fund). Had the Arizona legislature wanted to

27 implement a state-wide program, it certainly could have, but it did not. Further, also like

28 Del Campo, the decisions at issue here—the CA’s decision to contract with a private entity

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1 (TASC), structure the distribution of work, and run the program, including setting and

2 enforcing its policies—are all “purely administrative decisions that have no connection”

3 with the CA’s role as a prosecutor.14

4

Defendants also argue that “[b]y requiring county attorneys to follow the APAAC

5 Deferred Prosecution Guidelines, the Legislature intended to impose statewide minimum

6 standards for ‘the conduct of any deferred prosecution program as defined by A.R.S. § 11-

7 361 within the State of Arizona.’” (Doc. 34 at 14). However, the state does not actually

8 supervise deferred prosecution programs or the county attorneys’ administration of those

9 programs. While the CA is required to provide reports on the MDPP to the Arizona

10 legislature, see A.R.S. § 11-362(B), here, as the courts noted in Milke and Goldstein, this

11 reporting requirement merely reflects a general state oversight, not actual state control or

12 supervision of the day-to-day operations of the CA’s office or the MDPP.15 And, as

13 Plaintiffs note, the APAAC guidelines only provide suggestions about the program’s

14 content; “a merely advisory set of guidelines and an obligation to report to the state what

15 the county decides to do in its discretion do not covert county policy into state policy.”

16 (Doc. 45 at 5–6; 14).16

17

All of this shows that it is within each county’s discretion whether to establish a

18 deferred prosecution program. And while the CA must maintain records and submit reports

19 14 The cases Defendants rely on to compel the opposite conclusion are out of circuit

20

decisions not binding on this Court. See Davis v. Grusemeyer, 996 F.2d 617, 629 (3d Cir. 1993) (finding oversight of bad check restitution program “is by definition intimately

21

related to [DA’s] prosecutorial powers, as it concerns who the district attorney will and will not bring criminal charges against.”); Shouse v. Nat’l Corrective Grp., Inc., 2010 WL

22

4942222, at *6 (M.D. Pa. Nov. 30, 2010) (court noted that the Third Circuit uses a “functional approach” to determine whether a prosecutor is entitled to absolute immunity

23

for conduct associated with the judicial phase of the criminal process, or qualified immunity for the prosecutor’s administrative or investigative roles; but court did not

24

undertake the kind of detailed analysis required by the Ninth Circuit in examining state statutes to determine the state or local nature of the precise function at issue).

25

15 For example, the APAAC guidelines section entitled “Mandated Reporting” states that each county attorney operating a program will maintain statistics on the number of

26

enrollees, number of persons who successfully complete the program, and number of persons who were enrolled and who were subsequently convicted of a felony, and provide

27

this information to APAAC each year. 16 For example, the guidelines state that they are intended to provide minimum standards

28

and that they do not prevent individual prosecutors from adding provisions. Section B is entitled “Suggested Program Content” and notes that every effort should be made to

include the suggested components, within the discretion of the prosecutor.

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1 to the state, and follow APAAC guidelines in establishing a program, there is no direct

2 state involvement in establishing, administering, or otherwise operating a deferred

3 prosecution program. To the contrary, the statutes specifically state that only on request of

4 the CA, APAAC may provide technical assistance to develop or refine the program. A.R.S.

5 § 11-362(C). Taken all together, the statutes show an intent by the state legislature that

6 deferred prosecution programs are local programs, that it is up to each county/CA to

7 determine whether to have such a program and how the program will be established and

8 administered, and that the state has only general oversight over the programs of the counties

9 that decide to participate. In sum, the Court rejects the County Defendants’ argument that

10 Plaintiffs’ claims are predicated upon the CA’s function as a prosecutor on behalf of the

11 state. The Court finds that Plaintiffs’ claims are specific to the CA’s administrative role,

12 acting on behalf of Maricopa County, in developing, implementing, authorizing, or

13 otherwise adopting the three policies that Plaintiffs challenge. Plaintiffs’ damages claims

14 are not based on the CA’s decision to refer individuals to the MDPP, or on his decision to

15 prosecute participants who are terminated from the MDPP. Thus, the Court concludes that

16 that CA acts as a local policymaker for purposes of the challenged conduct in this suit.

17

b. Policymaking authority

18

As explained above, pursuant to § 1983 and Monell, “a local government may be

19 liable for constitutional torts committed by its officials according to municipal policy,

20 practice, or custom.” Weiner, 210 F.3d at 1028. “‘[A] policy is a deliberate choice to follow

21 a course of action . . . made from among various alternatives by the official or officials

22 responsible for establishing final policy with respect to the subject matter in question.’”

23 Puente Arizona, 2016 WL 6873294 at *23 (quoting Chew v. Gates, 27 F.3d 1432, 1444

24 (9th Cir. 1994)). “These policies may be set by the government’s lawmakers, ‘or by those

25 whose edicts or acts may fairly be said to represent official policy.’” McMillian, 520 U.S.

26 at 784–85 (quoting Monell, 436 U.S. at 694).

27

Here, Defendants appear to argue that Maricopa County lacks policymaking

28 authority concerning the MDPP: “the FAC does not allege any specific facts showing that

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1 the County engaged in any decision-making or actions to establish, administer, control,

2 fund, or supervise the MDPP or the decisions and actions of the County Attorney and his

3 prosecutors. Thus, the FAC lacks any allegations that the County Attorney’s policies,

4 practices, and customs undertaken in connection with the MDPP are subject to § 1983

5 Monell liability. Instead, the FAC’s allegations point only to decisions and actions

6 undertaken by the County Attorney and his prosecutors in their capacity as prosecutors on

7 behalf of the State.” (Doc. 34 at 17).17 The Court rejects this argument. As explained above,

8 the Court finds that the CA acts for the county, not the state, in administering the MDPP

9 program. Second, the FAC names the CA as a defendant in his official capacity, which is

10 in essence a suit against the County. Plaintiffs allege that the CA acts on behalf of and is

11 the final policymaker for the County with respect to the MDPP, (Doc. 20 at ¶ 45, n.7), and

12 Defendants admit that the CA is the MDPP’s relevant policymaker (Doc. 34 at 13).

13 Plaintiffs further allege that the County is liable for the CA’s administration of the program

14 and of TASC’s administration and supervision of participants in the program. (Doc. 20 ¶

15 46; Doc. 45 at 9).18

16 17 Defendants’ argument in their motion is not so much about policymaking authority of

17

the County or the CA, but that the board of supervisors has not taken any action regarding the MDPP. (Doc. 34 at 17). Defendants cite A.R.S. § 11-201(A) for the proposition that

18

the powers of the county may only be exercised by the board of supervisors. However, the full sentence of the statute specifically states that “[t]he powers of a county shall be

19

exercised only by the board of supervisors or by agents and officers acting under its authority and authority of law.” (emphasis added). The CA is clearly an agent or officer of

20

the county. See A.R.S. § 11-532 (the county attorney is the public prosecutor of the county). 18 Plaintiffs further state that the evidence they have gathered thus far suggests that

21

Maricopa County has delegated its policymaking authority for the MDPP to the CA, and either directly or through the CA, to TASC as well. (Doc. 45 at 9 n.9).

22

As to Plaintiffs’ argument that the County is liable for TASC’s administration and supervision of MDPP participants, Plaintiffs state that the Court need not reach the issue if

23

it determines that Maricopa County is liable for the CA’s unlawful administration of the program. (Doc. 45 at 21–22); see Lemmons v. Cty. of Sonoma, 2018 WL 452108, *3 (N.D.

24

Cal. Jan. 17, 2018) (“By ceding control and final decision making to [private entity] as it relates to providing adequate healthcare to prisoners, [private entity’s] policies effectively

25

become the policies of Sonoma County” and county can be liable for constitutional injuries); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705 n.9 (11th Cir. 1985)

26

(county was liable for any constitutional deprivations caused by policies or customs of private entity that county contracted with to provide medical services in county jail; “where

27

a governmental entity delegates the final authority to make decisions then those decisions necessarily represent official policy.”); Herrera v. Cty. of Santa Fe, 213 F. Supp. 2d 1288,

28

1292 (D. N.M. July 18, 2002) (where county contracted with private company to manage and operate detention center, county delegated final policy-making authority to private

entity and any custom or policy of entity with respect to operation of detention center

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1

The Court also looks to the January 27, 2009 Memorandum of Understanding

2 Between Maricopa County Attorney and TASC (“MOU”) to guide its analysis on this

3 issue. The MOU appears to use the terms “county attorney” and “MCAO” interchangeably.

4 While the document is entitled MOU between “Maricopa County Attorney” and is signed

5 by former CA Andrew Thomas, the first line of the document states that “The Maricopa

6 County Attorney’s Office (“MCAO”), and TASC, Inc., (“TASC”) entered into a

7 Memorandum of Understanding effective 16 April 1990 to clarify and set forth initial

8 guidelines for the implementation of the Maricopa County Attorney/TASC Adult Deferred

9 Prosecution Program (“ADPP”) for first time felony drug offenders.” The very next line

10 states that “MCAO and TASC agree that the 1990 MoU should be replaced with this

11 Memorandum of Understanding . . . to reflect the current understanding and practice[.]”

12 The remainder of the document refers to the CA, the County Attorney’s Office, and the

13 MCAO. While Defendants offer this document as evidence of Maricopa County’s lack of

14 involvement in the MDPP, this is a distinction without a difference. For all intents and

15 purposes, Maricopa County and the MCAO are essentially the same thing when it comes

16 to entity liability, as is a claim against the CA in his official capacity.19

17

Further, the substance of the MOU makes clear that the CA/MCAO worked jointly

18 with TASC to “create a structured program” and “hold the offender accountable.” The

19 MOU states, among other terms, that “TASC’s operation of the ADPP has successfully

20

21

constitutes a policy of the county for purposes of § 1983 liability). Here, Plaintiffs argue that the County is responsible for establishing the MDPP and has

22

authorized TASC to design and run the day-to-day operations of the program; the County is therefore liable for any custom or policy established by TASC in the course of that

23

operation. (Doc. 45 at 22). Plaintiffs state that “[d]iscovery will allow Plaintiffs and this Court to determine which policies the County is responsible for based on its delegation of

24

policymaking authority to Montgomery and TASC and/or its acquiescence in their unconstitutional practices.” (Doc. 45 at 23) (footnote omitted). The Court agrees. While

25

Plaintiffs make a number of allegations in the FAC, as the pleadings make clear, this case involves many disputed issues of fact that the Court cannot resolve at this juncture and that

26

require discovery. 19 This is made clear in the Behavior Specific Adult Diversion Program Contract that

27

Plaintiffs attach to their Response. Although not the contract governing the MDPP, Plaintiffs offer this as evidence of what they believe may be a similar contract existing that

28

does govern the MDPP. The behavior contract states that it is entered into and between “Maricopa County (“County”), a political subdivision of the State of Arizona, through the

Maricopa County Attorney’s Office (“MCAO”), and TASC[.]”

- 38 -

Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 39 of 42

1 implemented the County Attorney’s objectives”; that “TASC through the County Attorney

2 Submittal Form (“submittal”) will report to MCAO the status of each offender’s

3 participation and/or compliance with ADPP requirements”; “The County Attorney will

4 receive a submittal from TASC documenting the successful completion”; “Documentation

5 of all areas of non-compliance will be sent to the County Attorney’s Office”;

6 “Documentation of all program failures will be sent to the County Attorney”; “TASC

7 agrees to provide MCAO with a report showing program success rates”; and “TASC will

8 arrange a payment plan with the defendant and collect payments on behalf of MCAO . . .

9 TASC will send the County Attorney a list of those defendants who have paid along with

10 a check for the collected amount.”

11

In sum, based on the pleadings and this Court’s reading of the MOU, the Court finds

12 that the FAC has adequately pled policymaking authority by the county sufficient to

13 survive the motion to dismiss.

14

ii. Eleventh Amendment Sovereign Immunity

15

Defendants next argue that because the CA acts on behalf of the State in establishing

16 and implementing the MDPP, Eleventh Amendment sovereign immunity bars Plaintiffs

17 from recovering damages against the State or a State official in his official capacity. (Doc.

18 34 at 19).

19

Because the Court finds that the CA acts on behalf of the county in establishing and

20 implementing the MDPP and the specific policies at issue in this suit, this argument is

21 moot. See Eason v. Clark Cty. Sch. Dist., 303 F.3d 1137, 1141 (9th Cir. 2002) (“the

22 Eleventh Amendment does not extend to counties and municipal corporations”); Del

23 Campo v. Kennedy, 491 F.Supp.2d 891 (N.D. Cal. Dec. 5, 2006) (district attorney acts as

24 county policymaker in implementing certain aspects of misdemeanor diversion program

25 for bad check writers and thus is not a state actor entitled to Eleventh Amendment

26 immunity).

27

iii. Statute of Limitations

28

Finally, Defendants argue that Arizona’s two-year statute of limitations bars

- 39 -

Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 40 of 42

1 Plaintiff Briggs’ claims. (Doc. 34 at 23).

2

“The defendant . . . bears the burden of proof as to each element of a statute of

3 limitations based affirmative defense.” Lopez v. Bans, 2016 WL 6821860, *3 (E.D. Cal.

4 Nov. 18, 2016). The Court may dismiss a claim as untimely under Rule 12(b)(6) “when the

5 running of the statute of limitations is apparent on the face of the complaint.” Id. (internal

6 quotations and citation omitted).

7

“Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state’s

8 statute of limitations for personal injury actions.” Knox v. Davis, 260 F.3d 1009, 1012 (9th

9 Cir. 2001). “In Arizona, the courts apply a two-year statute of limitations to § 1983 claims.”

10 TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). “‘Although state law determines

11 the length of the limitations period, federal law determines when a civil rights claim

12 accrues.’” Knox, 260 F.3d at 1013 (quoting Morales v. City of Los Angeles, 214 F.3d 1151,

13 1153–54 (9th Cir. 2000)). “Under federal law, a claim accrues when the plaintiff knows or

14 has reason to know of the injury which is the basis of the action.” TwoRivers, 174 F.3d at

15 991. “Once a claim accrues, the limitations period begins to run, and any suits filed outside

16 the limitations period will be time barred.” Lopez, 2016 WL 6821860 at *3.

17

“The continuing violations doctrine extends the accrual of a claim if a continuing

18 system of discrimination violates an individual’s rights up to a point in time that falls within

19 the applicable limitations period.” Douglas v. Cal. Dept. of Youth Authority, 271 F.3d 812,

20 822 (9th Cir. 2001). In Gutowsky v. County of Placer, 108 F.3d 256, 259 (9th Cir. 1997),

21 the court held that the continuing violations theory applies to § 1983 actions. The court

22 noted that a Monell § 1983 municipal liability claim must allege “‘execution of a

23 government’s policy or custom . . . [that] inflicts the injury.’” Id. (quoting Monell, 436 U.S.

24 at 694). Thus, “[i]f the continuing violations doctrine were inapplicable to Monell actions,

25 it is difficult to ascertain exactly when such claims would accrue[.]” Id.

26

[There are] two methods by which a plaintiff may establish a

continuing violation. First, the plaintiff may show a serial

27

violation by pointing to a series of related acts against one

individual, of which at least one falls within the relevant period

28

of limitations . . . Second, a plaintiff may show a systematic

policy or practice of discrimination that operated, in part,

- 40 -

Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 41 of 42

1

within the limitations period—a systematic violation.

2 Douglas, 271 F.3d at 822 (internal quotations and citations omitted); see also Gutowsky,
3 108 F.3d at 259 (“a continuing violation may be established through a series of related acts
4 against one individual, or by a systematic policy or practice of discrimination”; court found
5 plaintiff’s “papers were replete with evidence of an ongoing practice and policy that denied
6 [employment advancement] opportunity to women”). Further, for a systemic violation
7 claim, “if both discrimination and injury are ongoing, the limitations clock does not begin
8 to tick until the invidious conduct ends.” Douglas, 271 F.3d at 822 (quotations and citation
9 omitted). “However, . . . a mere continuing impact from past violations is not actionable.”
10 Knox, 260 F.3d at 1013 (internal quotations and citations omitted) (finding continuing
11 violation theory did not apply where plaintiff received permanent and complete suspension
12 letter withdrawing her legal mail and visitation privileges; plaintiff failed to establish that
13 a new violation occurred each time she was denied visitation or mail privileges, and
14 subsequent denials were merely continuing effect of original suspension); see also Shannon
15 v. Babb, 103 F. App’x 201 (9th Cir. 2004); Poole v. City of Los Angeles, 41 F. App’x 60
16 (9th Cir. 2002).
17 Plaintiffs filed their original complaint on August 23, 2018. (Doc. 1). Briggs took
18 his final urine test on August 23, 2016 and completed the program on August 25, 2016.
19 (Doc. 45 at 25).
20 Defendants argue that Briggs’ “latest plausible accrual date is August 8, 2016, when
21 Briggs knew or had reason to know of his injury stemming from his inability to pay at the
22 time of his first of fifteen urinalysis tests occurring beyond the initial 90 days of the
23 program.” (Doc. 34 at 23–24) (citation omitted). Thus, Defendants conclude that,
24 “[w]orking backwards from Briggs’ last test on August 23, 2016, accrual occurred at the
25 latest on August 8, 2016 if Briggs was subject to one test each day for the fifteen days
26 directly prior to his last test.” Id. at 24.
27 Conversely, Plaintiffs contend that Briggs’ claims did not begin to accrue until he
28 completed the diversion program on August 25, 2016. (Doc. 45 at 24). Because Briggs was

- 41 -

Case 2:18-cv-02684-EJM Document 89 Filed 06/18/19 Page 42 of 42

1 subject to Defendants’ “systematic violations until he completed the program . . . the

2 limitations clock to challenge that continuing series of violations relating to his unlawful

3 supervision in the diversion program did not begin to tick until he completed the program.”

4 Id.

5

The Court finds that Briggs’ claims may fall within either or both of the two methods

6 for establishing a continuing violation set forth in Douglas. First, Briggs has pointed to a

7 series of related acts—multiple drug tests occurring past the 90-day period that he alleges

8 were conducted in violation of the Fourth Amendment and only because he was unable to

9 pay the program fee. Second, Briggs also alleges Defendants have a policy, practice, and/or

10 custom that discriminates against the poor; indeed, Briggs brings his Fourth and Fourteenth

11 Amendment claims not just on his own behalf, but also on behalf of a class of others

12 similarly situated. Finally, because Briggs alleges a systemic violation claim, “the

13 limitations clock does not begin to tick until the invidious conduct ends”—in this case, on

14 August 25, 2016, when Briggs completed the program. Douglas, 271 F.3d at 822.

15 Accordingly, the Court finds that Plaintiff Briggs’ claims are not barred by the statute of

16 limitations.

17 IV. CONCLUSION

18

“Complaints under the Civil Rights Act are to be liberally construed.” Thomas v.

19 Younglove, 545 F.2d 1171, 1172 (9th Cir. 1976). The Court “cannot say with certainty at

20 this early stage in the litigation that plaintiffs can prove no set of facts which would entitle

21 them to relief.” Id. Accordingly, for the reasons explained above,

22

IT IS HEREBY ORDERED denying the motions to dismiss. (Docs. 34 and 36).

23

IT IS FURTHER ORDERED Defendants shall file their responsive pleadings

24 within fourteen (14) days of the date of this order. Fed. R. Civ. P. 12(a)(4); see (Doc. 79).

25

Dated this 18th day of June, 2019.

26

27

28

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 Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 1 of 57

1 Timothy J. Eckstein, 018321 Joshua D. Bendor, 031908
2 OSBORN MALEDON, P.A. 2929 N. Central Ave., Suite 2100
3 Phoenix, Arizona 85012-2793 (602) 640-9000
4 teckstein@omlaw.com jbendor@omlaw.com
5
A. Dami Animashaun 6 Katherine Chamblee-Ryan
Olevia Boykin 7 CIVIL RIGHTS CORPS
910 17th Street NW, Second Floor 8 Washington, D.C. 20006
(202) 656-5189 9 dami@civilrightscorps.org
katie@civilrightscorps.org 10 olevia@civilrightscorps.org

11 Attorneys for Plaintiffs

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE DISTRICT OF ARIZONA

14 DeShawn Briggs, Mark Pascale,

15

McKenna Stephens, and Lucia Soria, on behalf of themselves and all others

No. CV-18-2684-PHX-EJM _______________

16 similarly situated; Taja Collier,

SECOND AMENDED CLASS

17 v.

Plaintiffs,

ACTION COMPLAINT AND JURY TRIAL DEMAND

18 William Montgomery, in his official

19

capacity as County Attorney of Maricopa County; Maricopa County;

20

Treatment Assessment Screening Center, Inc.,

21

Defendants.

22

OVERVIEW

23

1. The Maricopa County Attorney’s Office (MCAO) and the Treatment

24 Assessment Screening Center (TASC) jointly operate a possession of marijuana

25 diversion program1 that penalizes the poor because of their poverty.

26

27 1 This diversion program is referred to in the Complaint as “the possession of

28

marijuana diversion program,” “the marijuana diversion program,” and “the program.”

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 2 of 57

1

2. In a “diversion” program, participants undergo a period of supervision

2 and must meet certain requirements to avoid criminal prosecution and conviction.

3

3. The programs are generally “a functional equivalent of a sentence to

4 pretrial probation . . . and [are] staffed with paraprofessionals overseeing individuals in

5 what [is] in effect a probationary-type of supervision and control.”2

6

4. In principle, the programs are “intended to relieve overburdened courts

7 and crowded jails, and to spare low-risk offenders from the devastating consequences

8 of a criminal record.”3

9

5. But in Maricopa County, they serve another purpose: to make money for

10 those who operate the program, including the MCAO.4

11

6. Between 2006 and 2016, MCAO collected nearly $15 million in revenue

12 by diverting threatened prosecutions to TASC.5

13

7. The length of time a person spends in the diversion program and whether

14 the person ultimately completes the program and avoids felony criminal prosecution

15 depends on whether she can pay the program’s required fees.

16

17 2 S. Rep. No. 93–1021, at 36–37 (1974) (describing the operation of two pretrial diversion programs).
18 3 Shaila Dewan & Andrew W. Lehren, No Money, No Mercy: After a Crime, the

Price of a Second Chance, N.Y. Times (Dec. 12, 2016), 19 https://www.nytimes.com/2016/12/12/us/crime-criminal-justice-reform-

20 diversion.html. 4 See Megan Cassidy, If Prop. 205 Passes, Maricopa County Attorney’s Office
21 Funds From Marijuana Diversion Program Would Dry Up, Ariz. Republic (Oct. 26,

22 2016), https://www.azcentral.com/story/news/local/phoenix/2016/10/26/prop-205marijuana-diversion-tasc-dry-up-county-attorney-bill-montgomery-

23 millions/92795924; Ray Stern, If Prop 205 Passes, the Maricopa County Attorney’s

Budget is Likely to Take a Hit, Phoenix New Times (Oct. 31, 2016), 24 https://www.phoenixnewtimes.com/news/if-prop-205-passes-the-maricopa-county-

25 attorneys-budget-is-likely-to-take-a-hit-8782184; Ray Stern, Potential Marijuana Legalization in Arizona Threatens TASC Drug Treatment Firm’s Funding, Phoenix
26 New Times (Jan. 26, 2016), https://www.phoenixnewtimes.com/news/potential-

27

marijuana-legalization-in-arizona-threatens-tasc-drug-treatment-firms-funding7999610.

28 5 See Cassidy, supra note 4.

2

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 3 of 57

1

8. In order to complete the program and avoid felony criminal prosecution,

2 participants in the marijuana diversion program must pay a fee of $950 or $1000.

3

9. Participants must also pay $15 or $17 for each drug and alcohol test; they

4 may be required to take as many as three or four tests each week.

5

10. The program is two-tiered: people who meet program requirements—

6 completing a three-hour drug education seminar and routine drug and alcohol testing—

7 and are wealthy enough to pay the $950 or $1000 program fee complete the program in

8 90 days and are no longer subject to felony criminal prosecution.

9

11. But participants who cannot pay the program fees are forced to stay in the

10 program for at least six months and until they can pay off the money owed to MCAO

11 and TASC, even if they have satisfied every program requirement other than payment.

12

12. During the “pay-only”6 period, participants remain subject to felony

13 criminal prosecution during the additional time they are forced to remain in the

14 diversion program.

15

13. These participants also remain subject to all of the diversion program’s

16 requirements.

17

14. These requirements include reporting to a TASC location, as often as four

18 times per week, so that the participant’s urine can be collected and tested.

19

15. Participants who remain on diversion solely because of their inability to

20 pay program fees must also continue to pay $15 or $17 each time they are required to

21 submit to a drug and alcohol test.

22

23

24 6 “Pay-only” refers to a period of criminal supervision during which the person is

25 supervised only because she has not paid all of her debt. This “extremely muscular form of debt collection,” which “masquerades as supervision,” is becoming

26 increasingly common. Human Rights Watch, Profiting from Probation: America’s

27

‘Offender Funded’ Probation Industry (Feb. 5, 2014), https://www.hrw.org/report/2014/02/05/profiting-probation/americas-offender-

28 funded-probation-industry.

3

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 4 of 57

1

16. The perverse result is that poor people are ultimately charged more

2 money—potentially hundreds of dollars more—than similarly situated participants who

3 can afford to pay to finish the program in 90 days.

4

17. Participants who cannot afford to pay for diversion may also be

5 terminated from the program altogether and referred for felony prosecution.

6

18. This can happen in at least two ways.

7

19. First, Defendants require diversion participants to make a minimum

8 monthly payment towards the $950 or $1000 program fees at a rate set by Defendant

9 TASC.

10

20. A participant who fails to pay the minimum monthly payment set by

11 Defendant TASC can be terminated from the program and prosecuted.

12

21. Defendants do not inquire into a participant’s ability to pay before setting

13 the minimum monthly fee.

14

22. Defendants’ policy does not include any exception for participants who

15 do not pay the minimum monthly amount solely because they cannot afford it.

16

23. Second, participants are not allowed to take the drug and alcohol tests the

17 program requires if they cannot afford to pay for them.

18

24. For example, if a participant cannot pay the $15 or $17 fee for a drug and

19 alcohol test, she is not allowed to take the test at all.

20

25. Therefore, if a participant reports for a drug and alcohol test without the

21 required fee, she will be turned away, and she will receive a violation for missing the

22 test.

23

26. In other words, an unpaid drug and alcohol test is a failed test.

24

27. If a participant misses too many drug and alcohol tests—even if she

25 missed them solely because she could not afford to pay for them—she will be failed out

26 of the diversion program and prosecuted for felony possession of marijuana.

27

28 4

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 5 of 57

1

28. Defendants enforce these policies even when they know that diversion

2 participants are poor or even homeless, and even when they know that participants are

3 sacrificing basic necessities to pay fees.

4

29. And indeed, Defendants have a financial incentive to enforce the policies

5 this way—and to use the specter of termination and felony prosecution to coerce as

6 much money from participants as they can.

7

30. Diversion participants who alert TASC employees that they cannot afford

8 the required fees are told that they will be failed from the program if they do not pay

9 and to do whatever it takes to get the money.

10

31. For example, Plaintiff Marc Pascale is a 60-year-old man with

11 degenerative disc disease, which has left him physically unable to work.

12

32. TASC refused to waive his program and drug and alcohol testing fees

13 even after he repeatedly told them that he could not afford to pay the fees.

14

33. Mr. Pascale’s case manager repeatedly told him to borrow money to pay

15 the fees or else he would fail the program, lose the money he had already paid in

16 program and drug and alcohol testing fees, and be prosecuted for felony criminal

17 possession of marijuana.

18

34. Plaintiff Taja Collier emailed her case manager at TASC to tell her that

19 she was homeless and could not afford to pay for drug and alcohol testing.

20

35. Ms. Collier’s case manager responded that if she did not test, she would

21 be issued a notice of violation and her case would be sent back to court, where she

22 would be prosecuted for felony criminal possession of marijuana.

23

36. As a result, Ms. Collier sold her blood plasma to pay for drug and alcohol

24 tests.

25

37. Plaintiffs bring this civil rights action pursuant to 42 U.S.C. § 1983 to

26 redress violations of Named Plaintiffs’, class members’, and Plaintiff Collier’s rights

27 under the Fourth and Fourteenth Amendments of the United States Constitution.

28 5

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 6 of 57

1

38. Named Plaintiffs DeShawn Briggs, Mark Pascale, and Lucia Soria, as

2 well as the class members whose interests they represent, seek monetary damages

3 against Defendants for violation of these rights.

4

39. Named Plaintiffs McKenna Stephens and Lucia Soria, as well as the class

5 members whose interests they represent, seek injunctive relief against the Defendants

6 to enjoin Defendants from continuing their unlawful and unconstitutional policies,

7 practices, and customs.

8

40. Plaintiff Taja Collier seeks monetary damages and injunctive relief on her

9 own behalf.

10

PARTIES

11

Plaintiffs

12

41. Plaintiff DeShawn Briggs is a 28-year-old African American man. He is

13 a resident of Maricopa County, Arizona. Mr. Briggs spent six months in Defendants’

14 marijuana diversion program solely because he was unable to pay the program fees

15 within 90 days. He represents himself and a class of similarly situated people subject to

16 Defendants’ unlawful policies, practices, and customs.

17

42. Plaintiff Marc Pascale is a 60-year-old white man. He is a resident of

18 Maricopa County, Arizona. Mr. Pascale spent more than seven months in Defendants’

19 marijuana diversion program solely because he was unable to pay the program fees in

20 90 days. He represents himself and a class of similarly situated people subject to

21 Defendants’ unlawful policies, practices, and customs.

22

43. Plaintiff McKenna Stephens is a 24-year-old white woman. She is a

23 resident of Maricopa County, Arizona. Ms. Stephens is currently a participant in

24 Defendants’ marijuana diversion program. Ms. Stephens has complied with all of the

25 program requirements to date and will complete all non-monetary program

26 requirements during the first 90 days of the program. However, she is unable to pay the

27 program fees in full during the first 90 days of the program. Therefore, as a result of

28 6

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 7 of 57

1 Defendants’ policies and practices, Ms. Stephens will be forced to stay in the program

2 for at least six months and until she can pay all of the required fees. As long as Ms.

3 Stephens is required to remain in the program, she will remain subject to felony criminal

4 prosecution and be forced to submit to routine, suspicionless drug and alcohol tests.

5 Ms. Stephens also cannot afford the minimum monthly payments Defendants require,

6 and Defendants may terminate her from the program as a result. She represents herself

7 and a class of similarly situated people subject to Defendants’ unlawful policies,

8 practices, and customs.

9

44. Plaintiff Lucia Soria is a 38-year-old Latina woman. She is a resident of

10 Maricopa County, Arizona. Ms. Soria is currently being supervised on Defendants’

11 marijuana diversion program solely because she is unable to pay program fees. Ms.

12 Soria represents herself and a class of similarly-situated people subject to Defendants’

13 unlawful policies, practices, and customs.

14

45. Plaintiff Taja Collier is a 21-year-old African American woman. She is

15 a resident of Maricopa County, Arizona. Ms. Collier first enrolled in Defendants’

16 marijuana diversion program in July 2017. Ms. Collier was willing to meet all diversion

17 requirements, but she could not afford to pay for drug and alcohol testing, particularly

18 during a month when she was homeless and sleeping in parks. After Ms. Collier could

19 not afford to pay for several drug and alcohol tests, she was terminated from the

20 diversion program and prosecuted for felony possession of marijuana. After prosecution

21 was initiated, Ms. Collier was again diverted into Defendants’ diversion program. Ms.

22 Collier cannot afford the minimum monthly payments Defendants require, and

23 Defendants may terminate her from the program as a result. Ms. Collier also cannot

24 afford to pay for the required drug and alcohol tests, and she may be terminated for that

25 reason as well. Ms. Collier brings this suit on her own behalf.

26

27

28 7

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 8 of 57

1

Defendants

2

46. Defendant Bill Montgomery is the elected County Attorney for

3 Maricopa County, Arizona. Defendant Montgomery is the chief official responsible for

4 the enforcement and prosecution of felonies within Maricopa County. Defendant

5 Montgomery is also responsible for operating and administering the deferred

6 prosecution programs in Maricopa County. Defendant Montgomery is the final

7 policymaker for Maricopa County on matters relating to diversion programs, including

8 the marijuana diversion program at issue in this lawsuit. He is sued in his official

9 capacity.

10

47. Defendant Maricopa County, Arizona7 is a political subdivision formed

11 and designated as such pursuant to Title 11 of the Arizona Revised Statutes. Defendant

12 Maricopa County can sue and be sued in its own name. Maricopa County is liable for

13 the practices and policies of Defendants Montgomery and TASC. The County has and

14 continues to acquiesce in the administration of the TASC drug diversion program,

15 including the marijuana diversion program at issue in this lawsuit.

16

48. Defendant Treatment Assessment Screening Center is a private, non-

17 profit, 501(c)(3) corporation headquartered in Phoenix, Arizona. Defendant TASC has

18 contracted and continues to contract with MCAO to operate, administer, and supervise

19 the marijuana diversion program at issue in this lawsuit. Defendant TASC supervises

20 all people whose prosecutions for simple possession of marijuana have been diverted.

21 Defendant TASC acts under the color of law in its administration and supervision of

22 the County’s marijuana diversion program.

23

24

25

26
27 7 Defendant Montgomery, in his official capacity, acts on behalf of and is the final policymaker for Maricopa County with respect to the conduct described in this
28 lawsuit. If this is correct, naming Maricopa County as a defendant is redundant. 8

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 9 of 57

1

JURISDICTION

2

49. This action arises under 42 U.S.C. § 1983 and the Constitution of the

3 United States. This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331 and

4 1343.

5

50. Venue is proper under 28 U.S.C. § 1391(b). All Defendants’ official

6 places of business are located within this District. The events giving rise to the claims

7 occurred in this District.

8

STATEMENT OF FACTS

9 I. Defendants’ Unlawful Policies

10

Marijuana Possession Prosecutions in Maricopa County

11

51. In Arizona, possession of any amount of marijuana—even trace

12 amounts—can be prosecuted as a felony.8

13

52. Felony prosecution has severe consequences.

14

53. According to the National Inventory of the Collateral Consequences of

15 Conviction—an American Bar Association database—people convicted of felony

16 offenses in Arizona are subject to over 350 “collateral consequences” as a direct result

17 of a felony criminal conviction.9

18

19

20

21

22 8 See Ariz. Rev. Stat. Ann. § 13-3405(B)(1) (providing that possession of “an

23 amount of marijuana not possessed for sale having a weight of less than two pounds is

guilty of a class 6 felony”). Arizona is the only state in the nation where any amount 24 of marijuana, no matter how small, can draw a felony charge. See Jacob Sullum,

25 Explaining His Cannabis Conversion, John Boehner Cites a Marijuana Myth, Reason (Apr. 12, 2018), http://reason.com/blog/2018/04/12/explaining-his-cannabis-

26 conversion-john/print. Possession of marijuana paraphernalia is also a class 6 felony

27

under Arizona law. See Ariz. Rev. Stat. Ann. § 13-3415(A). 9 See National Inventory of the Collateral Consequences of Conviction,

28 https://niccc.csgjusticecenter.org/search/?jurisdiction=8 (last visited Oct. 12, 2018).

9

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 10 of 57

1

54. For example, a person convicted of a felony in Arizona cannot vote, serve

2 on a jury, obtain a commercial driver’s license, possess a gun, or join the U.S. armed

3 forces.10

4

55. A felony conviction may also bar a person from receiving professional

5 licenses and affect a person’s child custody rights, parental status, and housing.11

6

56. A person with a felony drug conviction in Arizona may lose public

7 benefits, such as food stamps and social security benefits.12

8

57. Defendant County Attorney Bill Montgomery has aggressively opposed

9 legalization measures as well as efforts to reduce simple possession of marijuana to a

10 misdemeanor.

11

58. In 2016, Defendant Montgomery successfully advocated against the

12 passage of Proposition 205, a ballot initiative that would have made recreational

13 marijuana use legal in Arizona.

14

59. Defendant Montgomery made numerous public statements and

15 participated in public debates attacking the initiative and advocating for its failure.

16

60. During a public debate on marijuana legalization, Defendant

17 Montgomery told a Vietnam veteran, who admitted to using medical marijuana for back

18 pain and occasional recreation use, “I have no respect for you. … [Y]ou’re an enemy.”

19

61. Defendant Montgomery has also worked to narrow Arizona’s medical

20 marijuana laws.

21

62. For example, when Defendant Montgomery learned that doctors were

22 able to stop a five-year-old’s seizures by using a marijuana extract, he threatened the

23

24

25 10 See Consequences of a Felony, Maricopa County, AZ,
26 https://www.maricopa.gov/930/Consequences-for-a-Felony (last visited Oct. 11,

27

2018). 11 Id.

28 12 Id.

10

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 11 of 57

1 child’s parents with felony prosecution, arguing that extracts were not covered by the

2 state’s medical marijuana allowance.13

3

63. Drug possession charges represent an overwhelming proportion of the

4 charges filed by MCAO.

5

64. Possession of marijuana is the MCAO’s most commonly prosecuted

6 offense; it amounts to approximately 15 percent of total prosecutions.14

7

65. And more broadly, more than 45 percent of MCAO’s prosecutions are for

8 drug possession.15

9

66. Between 2006 and 2016, MCAO made nearly $15 million from diverting

10 threatened prosecutions to TASC.16

11

The Possession of Marijuana Diversion Program

12

67. For most people who are arrested in Maricopa County for simple

13 possession of marijuana or marijuana paraphernalia, the only way to avoid a felony

14 criminal prosecution is to complete the diversion program offered by MCAO.

15

68. To operate, administer, and supervise participants in the program, MCAO

16 has contracted with TASC, a private, non-profit company.

17

69. TASC also partners with MCAO to administer a diversion program for

18 possession of narcotics.

19

20

21

22 13 Evan Wyloge, Court Rules Medical Marijuana Patients Can Use Extracts, Ariz.
23 Capitol Times (Mar. 22, 2014), https://azcapitoltimes.com/news/2014/03/22/azmedical-marijuana-patients-can-use-cannabis-extract-court-rules-bill-montgomery.
24 14 See Maricopa County Attorney’s Office, 2016 Annual Report, at 43,
25 available at https://www.maricopacountyattorney.org/ArchiveCenter/ViewFile/Item/88. The year 2016 is the most recent for which MCAO has published
26 this charging data. 27 15 Id. (calculated by adding the percentage of the total offenses charged represented
by each type of drug charge listed). 28 16 Cassidy, supra note 4.
11

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 12 of 57

1

70. More than 15,000 people participated in MCAO and TASC’s marijuana

2 diversion program between 2011 and 2017.17

3

71. Over that same time period, the marijuana diversion program accounted

4 for approximately three quarters of TASC’s total intakes for drug diversion.18

5

72. People arrested for simple possession of marijuana or marijuana

6 paraphernalia can enter the diversion program either before or after criminal charges

7 are filed.

8

73. People who enter into the marijuana diversion program post-filing have

9 charges filed against them prior to enrolling in the program.

10

74. The charges are suspended while the person completes the program.

11

75. If the person successfully completes the program, MCAO dismisses the

12 case.

13

76. If the person fails to complete the program, MCAO reinstates

14 prosecution.

15

77. People can also enter the program before any criminal charges are filed

16 in court.

17

78. People who enter the marijuana diversion program pre-filing are sent a

18 letter from MCAO.

19

79. The letter informs the person that she is facing class 6 felony charges and

20 offers two options: criminal prosecution or the TASC marijuana diversion program.

21

22

23 17 See id. (providing the number of participants who enrolled in the program
24 between 2011 and 2015); Letter from Bill Montgomery, County Attorney, Maricopa
25 County, to Elizabeth Ortiz, Executive Director, Arizona Prosecuting Attorneys’ Advisory Council (Aug. 8, 2017) (providing the number of participants who enrolled
26 in the program from July 1, 2016 through June 30, 2017). 27 18 See Cassidy, supra note 4; Letter from Bill Montgomery, County Attorney,
Maricopa County, to Elizabeth Ortiz, Executive Director, Arizona Prosecuting
28 Attorneys’ Advisory Council (Aug. 8, 2017). 12

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 13 of 57

1

80. The letter warns, “If convicted of a class 6 felony, you could receive a

2 maximum sentence of 2 years in prison and a maximum fine of $150,000 plus 80%

3 surcharge.”

4

81. The letter also warns that a class 1 misdemeanor conviction could result

5 in “a maximum sentence of six months in jail and a maximum fine of $2,500.00 plus

6 80% surcharge.”

7

82. The threats in this letter are false.

8

83. The pre-filing diversion program generally only includes people with no

9 prior convictions.

10

84. Under Arizona law, jail or prison time is prohibited for a first or second

11 offense of simple possession of marijuana.

12

85. Instead, for people in this category, the law requires drug treatment and a

13 maximum penalty of probation. See Ariz. Rev. Stat. § 13-901.01(A), (D), (H)(1).

14

86. Accordingly, the people who receive the pre-filing letter threatening jail

15 time are ineligible to be jailed as a matter of state law.

16

87. The letter’s representation that its recipients could be fined $150,000 plus

17 an 80% surcharge are false as well.19

18

88. After delivering these false threats, the letter explains the basic

19 requirements of the marijuana diversion program and provides a deadline and contact

20 information to sign up for the program.

21

89. If a person in the pre-filing category completes the diversion program,

22 MCAO will not file charges against her.

23

24

25 19 A person convicted of possession of marijuana can be fined $750 or three times

26 the value of the marijuana involved. See Ariz. Rev. Stat. § 13-3405(D). $150,000 is

27

the maximum fine allowable for any felony. See Ariz. Rev. Stat. § 13-801(a). No person accused of a crime involving $50,000 worth of marijuana would be eligible for

28 TASC.

13

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1

90. Failing the program results in criminal prosecution.20

2

91. Participants who do not complete the diversion program and whose cases

3 are prosecuted have little hope of avoiding felony criminal prosecution and conviction

4 because people who enroll in the marijuana diversion program—whether pre- or post-

5 filing—are first required to sign a statement of facts admitting their guilt.

6

92. A TASC employee tells participants exactly what to write in the statement

7 of facts.

8

93. The following information must be written into the statement:

9

a. Date and location of the offense;

10

b. The full name of the substance possessed;

11

c. That the participant possessed a usable amount of the substance; and

12

d. The facts of the offense, which must read, “the [name of the drug] was

13

found in [where the drug was found] in my possession.”

14

94. This signed statement of facts can be used against a person if she fails to

15 complete the marijuana diversion program and is criminally prosecuted. See State v.

16 Gill, 391 P.3d 1193, 1197 (Ariz. 2017) (holding that a written admission contained in

17 a statement of facts obtained by a TASC representative was admissible at trial).

18

The Cost of Avoiding Prosecution

19

95. Once enrolled in the marijuana diversion program, the requirements for

20 the pre- and post-filing participants are the same.

21

96. For both groups of participants, avoiding prosecution costs money.

22

97. To complete the program, all participants must:

23

a. Pay program fees—$950 or $1000—in full;

24

b. Pay for and pass routine drug and alcohol tests for 90 days; and

25 20 When a person in the pre-filing group fails diversion, the prosecutor will file

26 charges in the case. When a person in the post-filing group fails diversion, the

27

prosecutor will move to reinstate the prosecution. As a matter of policy, practice, and custom, for both pre- and post-filing participants, TASC sends the participant a final

28 warning letter before the participant is failed from the program.

14

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1

c. Complete a three-hour drug education seminar.

2

98. The mandatory $950 or $1000 program fee includes the following:

3

a. $150 admission fee;

4

b. $650 “drug fund” fee;

5

c. $150 TASC fee; and

6

d. $50 booking fee, which applies only to participants who were arrested

7

and booked.

8

99. All of these fees must be paid in person by debit card or with a money

9 order.

10

100. Participants are not allowed to pay by any other means, including with

11 credit or cash.

12

101. Defendants require that participants pay the $150 admission fee at the

13 program orientation.

14

102. If a participant is unable to pay the $150 admission fee at orientation

15 because she cannot afford it, Defendants allow her to pay $75 at orientation and the

16 other $75 during the program.

17

103. If a participant cannot afford to pay $75 at orientation, she may be told to

18 return with the money the same day or be failed from the program and face felony

19 prosecution.

20

104. In addition to the $950 or $1000 in fees, participants must pay to take

21 drug and alcohol tests at TASC.

22

105. Each drug and alcohol test costs $15 or $17, depending on the method of

23 payment.

24

106. Participants must call TASC or consult a phone application every day,

25 seven days a week to determine whether they are required to report to a TASC location

26 that day so that TASC can collect and test their urine.

27

28 15

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1

107. If a participant does not call daily, she may miss a scheduled test and be

2 sanctioned, which could ultimately result in termination from the diversion program,

3 followed by felony prosecution.

4

108. Participants are required to drug test at least once—and often multiple

5 times—each week.

6

109. At the TASC location, TASC employees watch participants through glass

7 panels while they submit urine for drug and alcohol testing.

8

110. In at least one TASC location, the bathroom where participants submit

9 urine for testing includes multiple mirrors so that a TASC employee can watch the

10 participant urinate from multiple angles.

11

111. Records obtained as part of the preliminary investigation for this lawsuit

12 revealed that participants may be required to test as many as nine times per month.

13

112. Thus, on top of the $1000 in program fees, diversion participants pay at

14 least $60—but up to $153—each month for drug and alcohol tests.

15

113. In addition to the three program requirements, Defendants impose a

16 number of additional terms on participants.

17

114. These terms are set forth in a document called the “Client Contract.” 21

18

115. The Client Contract states that diversion participants must make

19 minimum monthly payments towards those fees at a rate set by Defendant TASC.

20

116. The rate set forth in the Client Contract is $160 or $170 per month.

21

117. Defendant TASC does not inquire into a participant’s ability to pay before

22 setting the minimum monthly fee.

23

118. If a participant does not make the minimum monthly payment set by

24 Defendant TASC, she can be terminated from the program and then prosecuted.

25

26 21 See MCAO/TASC Adult Deferred Prosecution Program Possession of

27

Marijuana, Client Contract (hereinafter “Client Contract”). In this Complaint, Plaintiffs cite the version of the Client Contract distributed to participants on Tuesday,

28 October 9, 2018.

16

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1

119. The Client Contract also prohibits, among other things:

2

a. Alcohol use, including over-the-counter medications that include

3

alcohol, like NyQuil;22

4

b. Leaving the state for any amount of time without “special permission

5

from TASC”;23

6

c. Leaving Maricopa County for more than one day without informing a

7

TASC case manager;24

8

d. Taking any prescription medication without reporting it to a TASC

9

case manager and bringing the prescription to TASC for

10

verification.25

11

120. The Client Contract also states that “[u]nless disability status applies,

12 [participants] must be employed while participating in the program.”26

13

121. “[V]iolation of any” of these provisions “can result in program

14 termination.”27

15

Defendants Require Participants to Remain on Diversion

Until All Fees Are Paid

16

122. Participants who complete the three program requirements—including

17 full payment of fees—within 90 days complete the diversion program at that point, and

18 they are not subject to felony criminal prosecution thereafter.

19

123. However, as a matter of policy, practice, and custom, people who cannot

20 afford to pay the program fees in full within 90 days are not released from the

21 program—even if they have completed the other program requirements, including

22 passing all drug and alcohol tests.

23

24

25 22 Id. ¶ 5. 23 Id. ¶ 10.

26 24 Id.

27

25 26

Id. ¶ 3. Id. ¶ 17.

28 27 Id. (unnumbered paragraph).

17

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1

124. Instead, participants who cannot afford to pay these fees must remain

2 subject to the requirements of the diversion program for a minimum of six months.

3

125. If these participants are not able to pay the program fees by the end of six

4 months, they must remain in the program until they do.

5

126. Defendants do not assess a person’s ability to pay before refusing to

6 consider her for program completion after 90 days, even when the participant has

7 completed every program requirement other than payment.

8

127. Nor do Defendants assess a person’s ability to pay before they require her

9 to remain on diversion beyond six months and until all fees are paid.

10

128. People who are forced to stay on diversion solely because they cannot

11 afford to pay program fees remain subject felony prosecution until they complete the

12 program.

13

129. In addition, these “pay only”28 participants are subject to same

14 requirements as they were during the first 90 days on diversion.

15

130. Thus, “pay only” participants are barred from drinking alcohol, taking

16 certain medications (like NyQuil), and leaving the State without Defendant TASC’s

17 approval.29

18

131. “Pay only” participants must continue to submit to one or more drug and

19 alcohol tests weekly—under the threat of felony criminal prosecution.

20

132. These participants must also complete all of the requirements attendant

21 to the drug and alcohol tests.

22

133. For example, participants must continue to call TASC every day, seven

23 days a week, to determine whether they are required to report to a TASC location during

24 a certain time period that day so that TASC can collect and test their urine.

25

26

27 28 See supra note 6 (explaining the term “pay-only”). 28 29 See Client Contract ¶¶ 3, 5, 10.
18

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 19 of 57

1

134. People who remain on diversion because they cannot afford to pay

2 program fees are also still forced to pay $15 or $17 for each drug and alcohol test.

3

135. As a result, these participants may ultimately have to pay hundreds of

4 dollars more than people wealthy enough to pay the $950 or $1000 program fee within

5 90 days—in addition to remaining subject to felony criminal prosecution for months

6 longer.

7

Defendants Terminate Participants from the Diversion Program

for Failure to Pay Minimum Monthly Program Fees

8

136. Pursuant to Defendants’ written policy, failure to pay program fees at the

9 monthly rate set by Defendant TASC will result in termination from the program and

10 prosecution for felony possession of marijuana.

11

137. The Client Contract, to which all participants are subject, states that the

12 minimum monthly rate is $160 or $170.

13

138. Defendants’ policy does not include any exception for participants who

14 did not make their monthly payment solely because they could not afford it.

15

139. Defendants do not inquire into a participant’s ability to pay before setting

16 the minimum monthly fee.

17

140. The Client Contract states: “Failure to make payments [toward the

18 program fees] each month as agreed will result in [the] case being returned for

19 prosecution.”30

20

141. Another paragraph of the Client Contract states that “failure to test as

21 scheduled, continued positive/diluted/altered tests, missed seminar/counseling, and/or

22 failure to make payments as agreed may result in unsuccessful termination from the

23 program.”31

24

142. Defendants have discretion as to when to enforce this policy; they may

25 terminate a participant on the first missed payment or the tenth.

26

27 30 Id. ¶ 12. 28 31 Id. ¶ 17 (emphasis added).
19

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1

143. But in every case, Defendants have a financial incentive to use the threat

2 of termination to coerce as much money from participants as they can.

3

144. Thus, a diversion participant who at any point is unable to make the

4 monthly payment set by Defendant TASC can be terminated from the program and

5 prosecuted for felony possession of marijuana.

6

Defendants Do Not Allow Participants to Take Drug and Alcohol Tests

7

Unless They Pay for Them

8

145. As a matter of policy, practice, and custom, Defendants do not allow

9 diversion participants to take the program’s mandatory drug and alcohol tests unless

10 they can pay for them at the time of the test.

11

146. As a result, poor people are forced to extend their time on the program

12 for failing to take mandatory drug and alcohol tests—solely because they could not

13 afford to pay for them.

14

147. People who cannot afford to take drug and alcohol tests may also fail the

15 program altogether.

16

148. Missed drug and alcohol tests are counted as “violations”—even when a

17 person only missed the test because she could not afford to pay for it.

18

149. The Client Contract states that “failure to test as scheduled . . . may result

19 in unsuccessful termination from the program.”32

20

150. A person who accrues too many of these violations will be failed by

21 TASC and referred to the MCAO for prosecution.

22

151. When this happens, a person faces felony prosecution solely because of

23 her inability to pay.

24

152. No one at TASC assesses a person’s ability to pay before referring her for

25 prosecution because she did not pay for drug and alcohol tests.

26

27 32 Client Contract ¶ 16. 28
20

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1

153. Nor does anyone at MCAO assess ability to pay before prosecuting

2 people who have failed diversion solely because of their inability to pay for drug and

3 alcohol tests.

4

Defendants’ Refusal to Waive Fees for the Poor

5

154. As a matter of policy, practice, and custom, Defendants do not reduce or

6 waive the $950 or $1000 program fee for any person, regardless of financial

7 circumstances.

8

155. Defendants contend that they allow for reductions of drug and alcohol

9 testing fees to $7 instead of $15 per test for participants who cannot afford them—but

10 these reductions are almost never granted in practice.

11

156. At the outset, Defendants do not assess participants’ ability to pay before

12 charging them in full for tests.

13

157. But even when Defendants are aware that a participant is indigent and

14 unable to pay without sacrificing basic necessities, Defendants require the participant

15 to pay the full $15 or $17 to test.

16

158. One TASC employee interviewed by investigators for undersigned

17 counsel stated that reduced drug and alcohol testing fees are reserved for people who

18 can demonstrate that they have basically zero income.

19

159. Another TASC employee explained that fee reductions are “very

20 difficult” to get and that “it rarely happens.”

21

160. As one TASC employee explained, drug and alcohol testing is “strictly

22 fee for service.”

23

161. When participants tell TASC case managers that they are struggling to

24 pay, the case managers recommend they borrow money from friends or family because

25 they will be failed from the program and prosecuted if they do not pay.

26

27

28 21

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1

162. According to Defendants’ written policy, even in the rare cases that fee

2 reductions are granted, full fees can be reinstated as a punishment for a dirty or diluted

3 urine test.

4

163. Defendants’ Client Contract warns, “If [a participant’s] fees are reduced

5 and [the participant] submit[s] a positive/diluted/altered urine test, full fees may be

6 reinstated … from that point forward until completion of the program.”33

7

The “User-Funded” Model

8

164. Defendants MCAO and TASC advertise the diversion program as “user-

9 funded.”

10

165. According to MCAO, “user-funded” means that “the [person entering the

11 program] typically bears the costs of the initial assessment and the assigned treatment.”

12

166. A brochure published by MCAO describing its felony pretrial diversion

13 programs notes that “defendants … bear the costs of the program.”34

14

167. Defendant TASC’s website explains that the diversion program “is fully

15 funded by the clients we serve.”35

16

168. Defendant TASC is responsible for collecting fees from the people

17 enrolled in the diversion program.

18

169. Defendant TASC keeps a portion of the money it collects.

19

170. The $650 “drug fund fee” that Defendant TASC collects from each

20 participant is deposited to MCAO.

21

171. MCAO does not publicly disclose how it spends the money it receives

22 from the program.

23

24

25 33 See MCAO/TASC Adult Deferred Prosecution Program Possession of Marijuana, Client Contract ¶ 13.

26 34 Maricopa County Attorney’s Office, Felony Pretrial Intervention Program

27

(2018). 35 Diversion, TASC, http://www.tascsolutions.org/tasc-services/diversion (last

28 visited Aug. 22, 2018).

22

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 23 of 57

1

172. In addition to collecting fees, the Contract between Defendants MCAO

2 and TASC makes Defendant TASC responsible for most of the day-to-day operations

3 of the possession of marijuana diversion program.

4

173. This includes administering drug and alcohol tests, tracking participants’

5 attendance and participation, and determining whether a participant has completed the

6 program requirements.

7

174. MCAO’s duties under the Contract are to assess the appropriateness of

8 referrals to the program and to send qualified participants to Defendant TASC.

9

175. The Contract does not require the MCAO to pay Defendant TASC any

10 money.

11

176. Instead, the Contract provides that the program’s participants alone will

12 pay Defendant TASC, and “no public monies will be expended pursuant to [the

13 Contract].”36

14

177. The Contract does provide that, “[a]t his option, the County Attorney may

15 utilize monies accumulated in the Drug Diversion Fund to satisfy the costs associated

16 with this agreement if the participant is indigent and unable to pay the costs associated

17 with the … diversion program.”37

18

178. But there is no requirement that MCAO make such payments. 38

19

179. Between 2006 and 2016, MCAO made nearly $15 million in fees from

20 participants in the marijuana diversion program.39

21

180. Defendant TASC has also benefited financially from operating the

22 marijuana diversion program.

23

24

25 36 MCAO & TASC, Behavior Specific Adult Diversion Program Contract, at 1 (Mar. 22, 2016, effective through Sept. 30, 2018).

26 37 Id.

27

38 The Contract states, “[U]nder no circumstances is the County liable for any fees or costs related to [the] Contract.” Id.

28 39 Cassidy, supra note 4.

23

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 24 of 57

1

181. Defendant TASC’s net assets were approximately $18 million in 2016.40

2

182. In 2014, TASC paid its CEO $281,165 and its former CEO $963,358.41

3

183. In 2015, TASC paid its CEO $321,347.42

4

184. In 2016, TASC paid its CEO $308,720.43

5 II. Plaintiffs

6

Damages Class Representatives DeShawn Briggs and Mark Pascale

7

185. Class representatives DeShawn Briggs and Mark Pascale were both

8 required to remain in the pretrial diversion program for more than double the time

9 required of similarly situated (but wealthier) participants solely because they were

10 unable to pay program fees.

11

186. Plaintiff DeShawn Briggs is a 28-year-old African American man.

12

187. In December 2015, Mr. Briggs was arrested for simple possession of

13 marijuana.

14

188. At the time of his arrest, Mr. Briggs worked part-time at Walmart, where

15 he made $10 per hour.

16

189. Mr. Briggs had no prior criminal record.

17

190. He was not addicted to marijuana.

18

191. On or around January 13, 2016, Mr. Briggs received a letter from MCAO.

19

192. The letter stated that he had two options with respect to his marijuana

20 arrest: he could face prosecution and conviction with a punishment of two years in jail

21 and a fine of up to $150,000 plus an 80% surcharge—or he could participate in the

22 TASC pretrial diversion program.

23

193. The claims in the letter Mr. Briggs received were false.

24

25

26 40 See IRS Form 990, filed by TASC for 2016, at 1.

27

41 42

See IRS Form 990, filed by TASC for 2014, at 7. See IRS Form 990, filed by TASC for 2015, at 7.

28 43 See IRS Form 990, filed by TASC for 2016, at 7.

24

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1

194. Because this was Mr. Briggs’ first offense, under Arizona law, he could

2 not receive jail or prison time if convicted of simple possession of marijuana.

3

195. Mr. Briggs also did not face a $150,000 fine.

4

196. Mr. Briggs did not know that he could not receive jail time for conviction

5 of marijuana possession since it was his first offense.

6

197. He also did not know that he could not be fined $150,000.

7

198. Mr. Briggs chose to participate in the pretrial diversion program because

8 he did not want to go to jail and thought the diversion program was the only way to

9 avoid two years of incarceration and a six-figure fine.

10

199. Mr. Briggs followed the instructions given in the letter and contacted

11 TASC to enroll in the program.

12

200. A TASC employee told Mr. Briggs to appear for orientation and bring a

13 $150 intake fee.

14

201. At the orientation, a TASC employee informed Mr. Briggs of the program

15 requirements and fees.

16

202. The TASC employee told Mr. Briggs that he would have to submit to and

17 pass random drug and alcohol tests for 90 days, complete a three-hour drug education

18 class, and pay his program fees of $1000 in full within that 90-day period.

19

203. The TASC employee told Mr. Briggs that the program would either last

20 for 90 days or six months.

21

204. The employee told him that if he tested clean, attended the class, and paid

22 his program fees in full, then he would complete the program in 90 days.

23

205. If he did not complete any of the three requirements in the first 90 days,

24 including payment of fees in full, he would have to stay in the program for an additional

25 three months or be prosecuted for a felony.

26

206. The TASC employee did not ask Mr. Briggs whether he would be able to

27 pay the program and drug and alcohol testing fees.

28 25

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1

207. Mr. Briggs was told to sign a “statement of facts” as a condition of entry

2 into the program.

3

208. The statement of facts stated that Mr. Briggs possessed a usable quantity

4 of marijuana.

5

209. Mr. Briggs did not consult with an attorney before signing the statement

6 because he could not afford one.

7

210. Because of this, Mr. Briggs believed that if he failed to meet the

8 program’s requirements—including paying the necessary fees—he would go to jail.

9

211. Mr. Briggs passed all of his drug tests during the first 90 days of the

10 program.

11

212. During that time period, Mr. Briggs was required to report for drug and

12 alcohol testing up to three times each week.

13

213. Mr. Briggs was forced to pay each time he reported for a drug and alcohol

14 test, even though he was struggling to pay for basic necessities.

15

214. Mr. Briggs also completed the required three-hour drug education

16 seminar during his first 90 days on the program.

17

215. However, in that first 90 days, Mr. Briggs could not afford to pay the

18 $1000 fee.

19

216. Mr. Briggs’s monthly pay at Walmart was less than $1000.

20

217. Mr. Briggs also has disabilities caused by spinal meningitis that limit his

21 ability to work.

22

218. During the first 90 days of the program, Mr. Briggs was only able to pay

23 $421 toward the $1000 balance.

24

219. Mr. Briggs made those payments in small installments.

25

220. He paid one $75 installment toward his $150 orientation fee on February

26 29, 2016.

27

221. He paid the second installment on April 14, 2016.

28 26

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1

222. On that same date, Mr. Briggs paid another $95 toward his balance.

2

223. On May 5, 2016, Mr. Briggs paid $170 toward his balance.

3

224. On May 11, 2016, he paid another $16.

4

225. During that same time period, Mr. Briggs paid approximately $195 for

5 drug and alcohol tests.

6

226. Despite meeting all other program requirements, Mr. Briggs was not

7 considered for program completion at the 90-day mark because he had not paid the

8 $1000 fee in full.

9

227. Instead, Mr. Briggs was required to remain on diversion, and remained

10 subject to felony criminal prosecution.

11

228. Mr. Briggs was also required to continue reporting to drug and alcohol

12 testing one to three times each week.

13

229. After the first 90 days on the program, Mr. Briggs reported for and passed

14 15 additional drug and alcohol tests.

15

230. The final drug and alcohol test that Mr. Briggs submitted to and paid for

16 was on August 23, 2016.

17

231. In total, the 15 drug and alcohol tests that Mr. Briggs had to take during

18 the pay-only period cost Mr. Briggs approximately $225.

19

232. Mr. Briggs also continued to make payments against his balance.

20

233. On June 16, 2016, Mr. Briggs paid $170.

21

234. On July 14, 2016, he paid $70.

22

235. On August 18, 2016, he paid $50.

23

236. Finally, on August 25, 2016, Mr. Briggs paid a final installment of $275.

24

237. When Mr. Briggs made this final payment, a TASC employee told

25 Mr. Briggs that had successfully completed the program and that he should return to

26 the TASC office the next day to receive his certificate of completion.

27

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1

238. Mr. Briggs returned to the TASC offices the following day and received

2 a certification of completion from TASC.

3

239. Plaintiff Mark Pascale is a 60-year-old man.

4

240. Mr. Pascale lives in Maricopa County, Arizona with his 15-year-old son,

5 for whom he is the sole provider.

6

241. Mr. Pascale is disabled; he suffers from degenerative disc disease in his

7 neck and back.

8

242. To manage his symptoms, Mr. Pascale takes an anti-epileptic drug, an

9 anti-convulsant drug, and morphine every day.

10

243. Because of his illness, Mr. Pascale has been physically unable to work

11 since 2008.

12

244. That year, Mr. Pascale filed for bankruptcy.

13

245. Mr. Pascale’s only stable source of income comes from federal disability

14 benefits.

15

246. Mr. Pascale also receives nutritional assistance benefits and, in the past,

16 has received assistance from government programs to pay his utility bills.

17

247. In May 2017, a police officer found a small amount of marijuana in

18 Mr. Pascale’s car.

19

248. Mr. Pascale was not arrested, but he received a criminal summons in the

20 mail in October 2017, stating that he was being charged with possession or use of

21 marijuana, a class 6 felony.

22

249. At his first court appearance, Mr. Pascale agreed to enroll in the

23 marijuana diversion program.

24

250. Mr. Pascale was not addicted to marijuana.

25

251. Mr. Pascale attended an orientation for the program on November 21,

26 2017.

27

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1

252. Mr. Pascale could not afford to pay the $150 application fee that TASC

2 requires at orientation.

3

253. A TASC employee agreed to allow Mr. Pascale to pay $75 up front

4 instead of $150 to attend the orientation.

5

254. The remaining $75 was added to Mr. Pascale’s bill, and he was required

6 to pay it before he could complete the diversion program.

7

255. During the orientation, a TASC employee told Mr. Pascale that he could

8 complete the program in 90 days if he did not fail any drug and alcohol tests and paid

9 all required fees in full.

10

256. When Mr. Pascale reported for his first mandatory drug and alcohol test,

11 he told his case worker at TASC that he could not afford to pay the $950 in program

12 fees.44

13

257. He also told her that he could not afford to pay $15 or $17 for drug and

14 alcohol testing weekly or multiple times each week.

15

258. Mr. Pascale’s case worker told him that there was no way to waive or

16 reduce the program fees.

17

259. However, she explained, his drug and alcohol testing fees could

18 potentially be reduced to $7 per test instead of $15 per test.

19

260. The case worker gave Mr. Pascale a financial information form to

20 complete.

21

261. On the form, Mr. Pascale marked that he was disabled and worked zero

22 hours per week.

23

262. He listed his income as $920 per month, explaining that he received

24 disability benefits.

25

26

27 44 Because Mr. Pascale was not arrested, he did not have to pay the $50 booking 28 fee.
29

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1

263. The case worker told Mr. Pascale that he did not qualify for reduced drug

2 and alcohol testing fees because he owned a computer and was paying for internet

3 service, which are “luxuries.”

4

264. Mr. Pascale therefore had to pay the full $15 for each required drug and

5 alcohol test.

6

265. These payments, made out of his disability income, made it difficult for

7 Mr. Pascale to pay for basic necessities for himself and his son, including food, shelter,

8 medication, and clothing.

9

266. Mr. Pascale was tested at least once per week, but as often as three times

10 per week.

11

267. At least once each month, Mr. Pascale would be asked to submit to

12 additional drug and alcohol testing because he had tested positive for opiates due to the

13 prescription medications he takes.

14

268. Mr. Pascale had provided his case worker with information and

15 documentation about the prescription medications that he takes (including morphine),

16 but even so, she ordered the extra testing.

17

269. Mr. Pascale had to pay for these additional tests as well.

18

270. Mr. Pascale frequently emphasized to his case worker that he did not have

19 the money to pay for drug and alcohol tests.

20

271. The case worker told Mr. Pascale that he had to pay in order to be tested

21 and suggested he borrow money.

22

272. Mr. Pascale often skipped paying bills to keep up with the fees.

23

273. After 90 days had passed, Mr. Pascale had met all non-monetary program

24 requirements and had never failed a drug and alcohol test.

25

274. He had not, however, finished paying the $950 he owed in program fees.

26

275. As a result, Mr. Pascale was required to remain on diversion until all of

27 the fees were paid.

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1

276. During this time, he was still required to submit to and pay for drug and

2 alcohol testing up to three times each week.

3

277. Mr. Pascale made his final payment—and submitted to and passed his

4 final drug and alcohol test—on June 29, 2018, more than seven months after he had

5 entered the program.

6

278. When Mr. Pascale told his case worker that he had paid his program fees

7 in full, she told him that he had successfully completed the program and issued a

8 certificate of completion dated July 5, 2018.

9

Damages and Injunctive Relief Class Representative Lucia Soria

10

279. Plaintiff Lucia Soria is a 38-year-old Latina woman.

11

280. Ms. Soria is a single mother. She has a son and daughter, both of whom

12 are teenagers. She lives with her parents, her children, and members of her extended

13 family.

14

281. Ms. Soria is unemployed and without income because her ability to work

15 is severely limited by her medical conditions, which include diabetes and neuropathy.

16 In November 2018, Ms. Soria’s doctor advised her to stop working because of her

17 medical conditions.

18

282. Ms. Soria left her employment as an assistant manager at Dollar Tree

19 shortly after receiving this advice from her doctor.

20

283. In December 2018, Ms. Soria was driving friends home when she was

21 pulled over. The officer alleged he found marijuana in the car, but Ms. Soria was not

22 arrested or cited.

23

284. On or around March 25, 2019, Ms. Soria received a letter from Defendant

24 MCAO about the marijuana diversion program.

25

285. The letter gave her a choice: she could agree to participate in the TASC

26 diversion program or she would face felony prosecution.

27

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1

286. The letter threatened Ms. Soria that, if convicted, she could be sentenced

2 to two years of imprisonment and a fine of up to $150,000, plus an 83% surcharge.

3

287. These threats were false.

4

288. Because Ms. Soria had never been convicted of possessing marijuana, she

5 could not receive jail or prison time if convicted of simple possession of marijuana

6 under Arizona law.

7

289. Nor was Ms. Soria eligible for a $150,000 fine.

8

290. But Ms. Soria believed the threats Defendant MCAO made in the letter.

9

291. Ms. Soria decided to enroll in the diversion program because she did not

10 want to be fined $150,000 or spend two years in prison.

11

292. Ms. Soria attended orientation for the marijuana diversion program after

12 receiving the letter in March 2019.

13

293. Ms. Soria was told that the program would cost approximately $950.

14

294. At orientation, Ms. Soria told the TASC employee who facilitated the

15 orientation class that she had no income and could not afford the fees. The TASC

16 employee responded by saying “it’s not up to me,” and told Ms. Soria that she had to

17 pay the fees or she could not participate in TASC.

18

295. The TASC employee also told Ms. Soria that in order to complete the

19 program in 90 days, she would have to submit to and pass random drug and alcohol

20 tests, attend a three-hour drug and alcohol seminar, and pay the $950 program fee within

21 that time period. Further, the TASC employee told Ms. Soria that if she were unable to

22 meet any of the three requirements—including full payment of program fees—she

23 would remain under TASC supervision in the diversion program.

24

296. Ms. Soria had to sign the “Client Contract” during orientation, which,

25 among other things, stated that she would be terminated from the program if she did

26 not make minimum monthly payments required by Defendant TASC.

27

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1

297. The Client Contract Ms. Soria signed set the minimum monthly payment

2 at $160 or $170.

3

298. The TASC employee also told Ms. Soria that, in addition to the program

4 fee, she would have to pay $15 each time she submitted to a drug and alcohol test.

5

299. Ms. Soria was not offered a fee waiver or fee reduction at orientation or

6 any other time during her tenure under TASC supervision.

7

300. Ms. Soria has submitted to one to three drug and alcohol tests every week

8 since she started the marijuana diversion program.

9

301. When Ms. Soria first started on the marijuana diversion program, the

10 closest location where she could test was approximately a 45-minute drive each way

11 from her home if there was no traffic.

12

302. During her time on the program, a TASC location has opened closer to

13 her house, but it is still a 30-minute drive each way from her home.

14

303. Ms. Soria often has to rely on her daughter to drive her to and from TASC

15 when she has to test.

16

304. Ms. Soria borrows money from her parents or her daughter when she has

17 to submit to drug and alcohol tests, because she fears that if she cannot pay for the test,

18 she will not be allowed to test and will be terminated from the program.

19

305. Ms. Soria cannot borrow money from her family members to pay off the

20 rest of the program fees because they cannot afford to give her the money.

21

306. Ms. Soria’s family has helped her pay off portions of the program fees in

22 the past with money received from tax refunds but they currently cannot afford to give

23 her money to pay off any more of the program fees.

24

307. On July 15, 2019, Ms. Soria asked her case worker, Viviana Garcia, when

25 her 90 days would be over and she would be off the program.

26

308. Ms. Garcia replied: “Your anticipated completion date is on 7/29/19 as

27 long as you have a zero balance . . . .”

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1

309. Ms. Soria asked, “what could I do if I can’t pay the 440.00 [I] still owe

2 by the 29th” and informed Ms. Garcia that she “still do[esn’t] have a job.”

3

310. Ms. Garcia replied: “If you are unable to pay of[f] your fees in full by

4 7/29/19 you will continue to comply with the program.”

5

311. Ms. Soria did not violate any program rules or policies between July 15,

6 2019 and July 29, 2019, the date she would have completed the program if she could

7 have afforded to pay the program fees.

8

312. Ms. Soria could not afford to pay the program fees in full by July 29,

9 2019—and still cannot afford to pay the program fees in full—and thus remains on the

10 program solely because she could not and cannot afford to pay the program fees.

11

313. Ms. Soria also cannot afford to pay Defendant TASC’s standard monthly

12 minimum payment of $160 or $170 per month, which was set forth in the Client

13 Contract to which she is subject.

14

314. Pursuant to Defendants’ written policy, if Ms. Soria cannot afford to

15 make the minimum monthly payment she will be terminated from the diversion

16 program.

17

315. Pursuant to Defendants’ policies, practices, and customs, if Ms. Soria is

18 terminated from the diversion program, she will be prosecuted for felony possession of

19 marijuana.

20

316. At orientation, Ms. Soria was told to sign a statement of facts confessing

21 to possession of marijuana as a condition of entering the program.

22

317. Ms. Soria believed that signing the statement in order to enter the

23 diversion program was the only way that she could avoid prosecution and potential for

24 a two-year prison sentence and a $150,000 fine.

25

318. Arizona law allows this confession to be used against Ms. Soria in court.

26

319. Accordingly, Ms. Soria believes that if she is prosecuted, she will be

27 convicted of felony marijuana possession because she signed the confession.

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1

Injunctive Relief Class Representative McKenna Stephens

2

320. Plaintiff McKenna Stephens is a 24-year-old white woman.

3

321. Ms. Stephens works as a part-time server at a restaurant.

4

322. On October 29, 2016, Ms. Stephens was sitting with a friend in a car when

5 they were approached by two police officers.

6

323. The officers searched the car and found a small amount of marijuana and

7 marijuana paraphernalia in the vehicle.

8

324. Ms. Stephens was arrested for possession of marijuana.

9

325. She was booked into a local jail and released.

10

326. The arresting officer told Ms. Stephens that she would receive a letter in

11 the mail regarding next steps.

12

327. Ms. Stephens had no prior criminal convictions.

13

328. She was not addicted to marijuana.

14

329. On August 3, 2018—nearly two years after she was arrested for

15 marijuana possession—Ms. Stephens received a letter from Defendant MCAO about

16 the marijuana arrest.

17

330. The letter gave her a choice: she could agree to participate in the TASC

18 diversion program or she would face felony prosecution.

19

331. The letter threatened Ms. Stephens that, if convicted, she could be

20 sentenced to two years of imprisonment and a fine of up to $150,000, plus an 80%

21 surcharge.

22

332. These threats were false.

23

333. Because this was Ms. Stephens’s first marijuana arrest, under Arizona

24 law, she could not receive jail or prison time if convicted of simple possession of

25 marijuana.

26

334. Nor was Ms. Stephens eligible for a $150,000 fine.

27

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1

335. But Ms. Stephens believed the threats Defendant MCAO made in the

2 letter.

3

336. She decided to enroll in the diversion program because she did not want

4 to be fined $150,000 or spend two years in prison.

5

337. Prior to orientation for the diversion program, a TASC employee told Ms.

6 Stephens that she would have to pay $150 in order to attend orientation and begin the

7 program.

8

338. Ms. Stephens attended orientation for the marijuana diversion program

9 on September 18, 2018.

10

339. That same day, Ms. Stephens paid $150 to TASC.

11

340. During the orientation, a TASC employee told Ms. Stephens that in order

12 to complete the program in 90 days, she would have to submit to and pass random drug

13 and alcohol tests, attend a three-hour drug and alcohol seminar, and pay the $1000

14 program fee within that time period.

15

341. The TASC employee told Ms. Stephens that if she were unable to meet

16 any of the three requirements—including full payment of program fees—within 90

17 days, she would have to stay in the diversion program for at least six months and until

18 the program fees were paid.

19

342. The TASC employee also told Ms. Stephens that, in addition to the $1000

20 program fee, she would have to pay $15 each time she submitted to a drug and alcohol

21 test.

22

343. Ms. Stephens informed the TASC employee that she had a medical

23 marijuana card and was legally able to use marijuana.

24

344. The TASC employee told her that she could use marijuana while on the

25 marijuana diversion program, but that Ms. Stephens would still have to submit to and

26 pay for random drug and alcohol tests.

27

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1

345. During her first week in the marijuana diversion program, Defendants

2 required Ms. Stephens to submit to four drug and alcohol tests.

3

346. Defendants required Ms. Stephens to pay $15 for each of the four drug

4 and alcohol tests.

5

347. Ms. Stephens intends to fulfill all of the non-monetary requirements of

6 the diversion program within the first 90 days.

7

348. However, Ms. Stephens cannot afford to pay the $1000 program fee

8 within 90 days.

9

349. Ms. Stephens’s sole income is the $600 or $700 she makes each month

10 as a part-time server.

11

350. Ms. Stephens’s allocates almost 100% of her income towards paying her

12 bills and expenses, which includes her car payment, insurance, gas, and phone service.

13

351. In order to complete diversion within 90 days, Ms. Stephens would have

14 to pay well over $300 each month.

15

352. Ms. Stephens could not pay this amount without defaulting on bill

16 payments and sacrificing basic necessities.

17

353. Because Ms. Stephens cannot pay the $1000 program fees within 90 days,

18 pursuant to Defendants’ policy, practice, and custom, she will be required to remain on

19 diversion (and subject to the diversion program’s requirements) for at least six months

20 and until she is able to pay the $1000 program fee.

21

354. Without sacrificing basic necessities or defaulting on bills, Ms. Stephens

22 also cannot afford to pay Defendant TASC’s standard monthly minimum payment of

23 $160 or $170 per month, which was set forth in the Client Contract to which she is

24 subject.

25

26

27

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1

355. If Ms. Stephens cannot afford to make the minimum monthly payment,

2 pursuant to Defendants’ written policy, she will be terminated from the diversion

3 program.45

4

356. Pursuant to Defendants’ policies, practices, and customs, if Ms. Stephens

5 is terminated from the diversion program, she will be prosecuted for felony possession

6 of marijuana.

7

357. At orientation, Ms. Stephens was told to sign a statement of facts

8 confessing to possession of marijuana as a condition of entering the program.

9

358. Ms. Stephens believed that signing the statement in order to enter the

10 diversion program was the only way that she could avoid prosecution and potential

11 confinement for two years and a $150,000 fine.

12

359. Arizona law allows this confession to be used against Ms. Stephens in

13 court.

14

360. Accordingly, Ms. Stephens believes that if she is prosecuted, she will be

15 convicted of felony marijuana possession because she signed the confession.

16

Individual Plaintiff Taja Collier

17

361. Plaintiff Taja Collier is a 21-year-old African American woman.

18

362. On October 7, 2016, Ms. Collier was riding in a car with friends when the

19 car was pulled over by a police officer for making an improper turn.

20

363. The officer searched the car’s occupants and found a small cylinder in

21 Ms. Collier’s purse that contained trace amounts of marijuana.

22

364. The amount of marijuana in the container was so small that the police

23 officer did not weigh it.

24

365. Ms. Collier was placed under arrest for possession of marijuana.

25

366. Ms. Collier had no prior criminal record.

26

27 45 Id. ¶ 12 ( “Failure to make payments [toward the program fees] each month as 28 agreed will result in [the] case being returned for prosecution.”
38

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1

367. Ms. Collier was not addicted to marijuana.

2

368. In early Spring 2017, Ms. Collier received a letter from MCAO.

3

369. The letter gave her two choices: she could face felony charges for

4 marijuana possession, or she could agree to participate in the TASC diversion program.

5

370. The letter warned Ms. Collier that if convicted, she could be sentenced to

6 two years in jail and a fine of up to $150,000, plus an 80% surcharge.

7

371. These threats were false.

8

372. Because this was Ms. Collier’s first offense, under Arizona law, she could

9 not receive jail or prison time if convicted of simple possession of marijuana.

10

373. Nor was Ms. Collier eligible for a $150,000 fine.

11

374. But Ms. Collier believed the threats in the letter.

12

375. She decided to enroll in the TASC diversion program because she did not

13 want to be fined $150,000 or spend two years in prison.

14

376. At the time of her arrest, Mr. Collier was a sophomore at Central Arizona

15 College, where she studied social work.

16

377. Central Arizona College is located in Casa Grande, Arizona, which is

17 almost an hour away from Phoenix.

18

378. When Ms. Collier learned that the TASC diversion program required

19 drug and alcohol testing in Phoenix multiple times each week, she decided she could

20 not go back to college while she was on the TASC program.

21

379. Ms. Collier did not have a car or money to make such a long trip so

22 frequently.

23

380. She had to stop attending school and move to Phoenix in order to

24 participate in the diversion program.

25

381. Ms. Collier was told that she would need to pay $150 at the orientation in

26 order to start the program.

27

382. She planned to start the program on June 22, 2017.

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1

383. That week, however, Ms. Collier realized she would not be able to come

2 up with the $150 required to start the program.

3

384. Ms. Collier had recently started a job working part-time at a Target.

4

385. Ms. Collier made around minimum wage and worked approximately 16

5 hours per week.

6

386. However, she had not yet received her first paycheck.

7

387. Ms. Collier called TASC’s main office to tell them that she could not

8 afford to pay the $150 fee.

9

388. No one called her back.

10

389. At 6:51 a.m. on the morning her orientation was set to begin, Ms. Collier

11 sent an email to the general email address for the possession of marijuana diversion

12 program.

13

390. The email read, “Hi, my name is Taja Collier. I called the office to

14 reschedule my appointment 2 days ago and have not received a call back. I left a

15 message for the corporate office and nod [sic] I’m sending this email. I had an

16 appointment today at 8:45 and I do not have 150 because I get my first check next week.

17 I do not want my file sent back to the court system.”

18

391. Later the same day, Ms. Collier reached a TASC employee by phone and

19 rescheduled her orientation for July 6, 2017.

20

392. Several days later, however, on June 25, 2017, Ms. Collier learned that

21 she would not be paid until after July 9, 2017.

22

393. Ms. Collier wrote again to the email address for the possession of

23 marijuana diversion program and informed TASC that she needed to reschedule the

24 orientation for after she got paid.

25

394. A TASC employee rescheduled Ms. Collier’s orientation for July 13,

26 2017.

27

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1

395. The employee did not tell her that she could start the program even if she

2 did not pay.

3

396. The employee also did not tell her that she could apply for a fee waiver

4 or a fee reduction.

5

397. On July 13, 2017, Ms. Collier paid $150 to TASC and attended the

6 mandatory orientation.

7

398. Shortly after her orientation, Ms. Collier was informed by the case

8 manager that had been assigned to her that she had to submit to a drug and alcohol test

9 and that she had to pay for the test in order to take it.

10

399. Ms. Collier was willing to take the mandatory test, but she could not

11 afford the $15 or $17 fee to pay for it.

12

400. Ms. Collier again emailed the address for the possession of marijuana

13 diversion program.

14

401. In her email, Ms. Collier pleaded: “I won’t be able to come up with the

15 fee money until next Friday. I keep calling [my case manager] to figure out what my

16 next steps should be. Is there anyway [sic] I can change case managers or get some

17 assistance?”

18

402. No one responded to the email.

19

403. Nor did anyone call Ms. Collier to follow up.

20

404. Ultimately, Ms. Collier could not take the test because she could not

21 afford to pay for it.

22

405. To pay for her drug tests going forward, Ms. Collier began to sell her own

23 blood plasma whenever she was called to test.

24

406. Whenever Ms. Collier would learn that she had a drug test, she would

25 schedule a blood plasma sale so that she could pay for the test.

26

407. Ms. Collier made $20 to $35 each time she sold her blood plasma.

27

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1

408. However, according to the blood plasma center’s rules, a person is only

2 allowed to sell blood plasma twice each week.

3

409. Therefore, weeks when Ms. Collier was called to drug test more than

4 twice were especially difficult for her to manage.

5

410. After she sold her blood plasma, Ms. Collier often felt fatigued and dizzy,

6 like she couldn’t breathe or might black out.

7

411. But she continued to sell her blood plasma because it was the only way

8 she could pay for the drug tests.

9

412. Ms. Collier told her case manager at TASC that she sold her blood plasma

10 to pay for drug tests.

11

413. The case manager never told her that she could take the tests without

12 paying for them at the time of the test.

13

414. The case manager also never told her that she could apply for a reduced

14 fee.

15

415. At times, even after selling her blood plasma, Ms. Collier could not afford

16 to take drug and alcohol tests at TASC.

17

416. When this happened, Ms. Collier could not take required drug and alcohol

18 tests because she was not allowed to test if she could not pay for it.

19

417. Instead, Ms. Collier would try to contact her case manager to tell her that

20 she could not afford to pay to test.

21

418. Frequently, Ms. Collier’s case manager would not answer her phone or

22 respond to emails, and Ms. Collier would try to reach her by calling TASC’s corporate

23 office.

24

419. In September 2017, Ms. Collier became homeless.

25

420. She remained homeless for approximately one month.

26

421. While she was homeless, Ms. Collier slept in public parks.

27

422. On September 20, 2017, Ms. Collier emailed her case manager.

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1

423. She explained, “I have been homeless for the passed [sic] week so money

2 has been really tight. … It has been really tough.”

3

424. Ms. Collier also told her case manager in the email that she planned to

4 start Job Corps and that she would be able to pay for drug and alcohol tests once she

5 started.

6

425. Ms. Collier’s case manager responded five days later.

7

426. In her email, the case manager replied:

8

“Sorry to hear that you are going through this. I am hoping

9

things get better for you. I also noticed that since you are

on your FINAL NOTICE, any missed test past this point

10

will result in program termination. So I am happy to hear

11

that you are going to do whatever is possible to test next

time you are required to test. Good Luck and hope

12

everything works out for you.”

13

427. Again, the case manager did not suggest that Ms. Collier could take the

14 tests without paying for them.

15

428. Nor did she invite her to apply for a reduced fee.

16

429. Shortly after this exchange, Ms. Collier was issued another violation

17 because she did not take drug and alcohol tests solely because she could not afford to

18 pay for them.

19

430. On October 10, 2017, TASC reported to MCAO that Ms. Collier had

20 failed the diversion program.

21

431. In its reasons for failing Ms. Collier, TASC listed that Ms. Collier had not

22 submitted to mandatory drug and alcohol tests.

23

432. As described above, Ms. Collier did not take these tests solely because

24 she could not afford to pay for them.

25

433. TASC also stated that Ms. Collier was being failed because she had not

26 paid the required TASC fee and had not paid the required drug fund assessment fee.46

27 46

In addition, TASC stated that Ms. Collier had not attended the program’s

28 mandatory seminar. However, participants are required to take this seminar before they

43

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1

434. On December 8, 2017, MCAO filed felony charges against Ms. Collier

2 for possession of marijuana.

3

435. Ms. Collier’s preliminary hearing was on January 22, 2018.

4

436. On that same date, Ms. Collier agreed to re-enroll in the TASC possession

5 of marijuana diversion program.

6

437. Ms. Collier’s prosecution was suspended for two years to allow her to

7 complete TASC.

8

438. Ms. Collier knew that she would struggle to pay for diversion.

9

439. But she decided to re-enroll because—based on the false threats in the

10 letter that she received from MCAO—she believed that she would go to jail if she did

11 not complete diversion.

12

440. To re-enter the program, Ms. Collier was again required to pay the $150

13 admissions fee.

14

441. Ms. Collier paid $148 toward that amount on March 13, 2018.

15

442. Ms. Collier paid the remaining $2 on May 24, 2018.

16

443. Since that time, Ms. Collier has made payments of between $8 and $20.

17

444. Ms. Collier still must pay $667 to TASC before she can complete the

18 program.

19

445. Ms. Collier cannot afford this sum without sacrificing basic necessities

20 like food and housing.

21

446. Nor can she afford to pay it at the rate required by Defendant TASC in

22 the Client Contract.

23

can successfully complete the program; they are not required to take it at a specific 24 time. Ms. Collier would not have been failed from the diversion program solely because

25 she had not yet completed the seminar. The only other reason TASC provided for failing Ms. Collier was that she did not respond to a non-compliance letter she received on

26 August 7, 2017. But Ms. Collier was in contact with her case manager after receiving

27

this letter and explained that she could not afford to pay for drug and alcohol tests. In addition, TASC does not have a policy, practice, or custom of failing diversion

28 participants who do not respond to a letter.

44

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1

447. Ms. Collier is also still required to submit to drug and alcohol testing—at

2 $15 or $17 per test—one to three times each week.

3

448. TASC still will not allow Ms. Collier to complete drug and alcohol tests

4 unless she pays for them.

5

449. Ms. Collier therefore continues to sell her blood plasma whenever she

6 knows she is going to be drug tested so that she can pay for the tests.

7

450. On August 17, 2018, Ms. Collier sent an e-mail to her case manager.

8

451. Ms. Collier wrote:

9

“Tasc has really been putting a big strain on my pockets. …

10

I am very concerned that I will end up homeless again

trying to sacrifice rent for tasc as this is putting Me [sic] in

11

a bad space. I have been donating plasma whenever I have

12

to test to get the money I need to pay for it, but I am afraid

it is affecting my health. I am willing to test whenever I’m

13

required but I cannot afford the fees. Is there anyway [sic]

that I can test without having to pay for it?” 14

15

452. Ms. Collier’s case worker replied, “You have to pay for the program in

16 order to complete the program. I understand that this is cost effective [sic] but in order

17 for you to have you [sic] felony dismissed with prejudice you will have to complete all

18 program requirement [sic] which includes paying all fees associated with the

19 program.”47

20

453. On September 4, 2018, Ms. Collier was scheduled to submit to a drug and

21 alcohol test at TASC.

22

454. Ms. Collier did not have any money to pay for the drug test.

23

455. Nevertheless, at approximately 6 p.m., Ms. Collier reported to the TASC

24 office in Phoenix to submit to a test.

25

26
27 47 In her response, the case worker also suggested that Ms. Collier could apply for insurance to alleviate the costs of one of the mandatory treatment classes. This would
28 do nothing to relieve the costs of program fees or the fees for drug and alcohol tests. 45

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1

456. When she arrived, Ms. Collier told a male TASC staff member that she

2 was willing to take the drug and alcohol test, but that she could not pay the fee that day.

3

457. The TASC staff member told Ms. Collier that if she did not have the

4 money, she could not take the drug and alcohol test.

5

CLASS ACTION ALLEGATIONS

6

458. The named Plaintiffs bring this case as a class action pursuant to Rules

7 23(a), 23(b)(2), and 23(b)(3) of the Federal Rules of Civil Procedure.

8

459. The Classes are defined as follows:

9

a. Damages Class: All people who, since August 23, 2016, and until the trial

10

of this case, (1) were enrolled in the marijuana diversion program

11

operated by Defendants TASC and MCAO; (2) satisfied all program

12

requirements in the first 90 days of the program other than payment of

13

program fees; and (3) were not considered for successful completion after

14

90 days solely because they were unable to pay the required fees. Named

15

Plaintiffs Deshawn Briggs, Mark Pascale, and Lucia Soria seek

16

certification of this class.

17

b. Injunctive Class: All people who (1) have not yet been formally charged

18

with possession of marijuana; (2) received a pre-filing letter offering

19

participation in the MCAO and TASC marijuana diversion program; and

20

(3) are unable to pay the required program fees within 90 days and/or at

21

the rate required by Defendant TASC. Named Plaintiffs McKenna

22

Stephens and Lucia Soria seek certification of this class.

23

460. The class members are readily ascertainable: the names and relevant

24 records of the class members are in Defendants’ possession.

25

Numerosity: Fed. R. Civ. P. 23(a)(1)

26

461. On information and belief, both Classes include at least several hundred

27 members.

28 46

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1

462. During the 2017 fiscal year (July 1, 2016 through July 30, 2017), there

2 were 2687 admittances to the possession of marijuana diversion program.

3

463. The marijuana diversion program has maintained similar numbers of

4 admittances in its last several years of operation.

5

464. Therefore, there were likely at least 2500 admittances in the 2018 fiscal

6 year.

7

465. Thus, if even a small percentage of the people admitted to TASC since

8 August 23, 2016 meet the requirements for the Classes, the Classes would number in

9 the hundreds.

10

466. Moreover, on information and belief, a large majority of those arrested

11 and prosecuted for marijuana possession in Maricopa County are deemed indigent for

12 the purposes of appointment of counsel.

13

Commonality: Fed. R. Civ. P. 23(a)(2)

14

467. The Class members’ claims raise common issues of fact and law.

15

468. With respect to the Damages Class, those common questions include, but

16 are not limited to:

17

a. Whether Defendants have a policy, practice, and custom of refusing

18

to consider diversion participants for program completion after 90

19

days and beyond solely because they cannot afford to pay the required

20

fees, without inquiring into those participants’ ability to pay;

21

b. Whether Defendants have a policy, practice, and custom of requiring

22

diversion participants who have not paid the required fees to remain

23

on diversion supervision until they have done so, without inquiring

24

into those participants’ ability to pay;

25

c. Whether Defendants’ diversion extension policies (in subparagraphs

26

(a) and (b)) violate the Due Process and Equal Protection Clauses of

27

the Fourteenth Amendment to the U.S. Constitution;

28 47

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1

d. Whether Defendants have a policy, practice, and custom of requiring

2

diversion participants who remain on diversion solely due to inability

3

to pay to continue to submit to and pay for random drug and alcohol

4

tests; and

5

e. Whether Defendants’ policy of continuing this mandatory drug and

6

alcohol testing for participants who remain on the diversion program

7

solely due to inability to pay violates the Fourth Amendment to the

8

U.S. Constitution.

9

469. With respect to the Injunctive Class, those common questions include,

10 but are not limited to:

11

a. Whether Defendants have a policy, practice, and custom of refusing

12

to consider diversion participants for program completion after 90

13

days and beyond solely because they cannot afford to pay the required

14

fees, without inquiring into those participants’ ability to pay;

15

b. Whether Defendants have a policy, practice, and custom of requiring

16

diversion participants who have not paid the required fees to remain

17

on diversion supervision until they have done so, without inquiring

18

into those participants’ ability to pay;

19

c. Whether Defendants’ diversion extension policies (in subparagraphs

20

(a) and (b)) violate the Due Process and Equal Protection Clauses of

21

the Fourteenth Amendment to the U.S. Constitution;

22

d. Whether Defendants have a policy, practice, and custom of requiring

23

diversion participants who remain on diversion solely due to inability

24

to pay to continue to submit to and pay for random drug and alcohol

25

tests;

26

e. Whether Defendants’ policy of continuing this mandatory drug and

27

alcohol testing for participants who remain on the diversion program

28 48

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1

solely due to inability to pay violates the Fourth Amendment to the

2

U.S. Constitution;

3

f. Whether Defendants have a policy, practice, and custom of requiring

4

diversion participants to make a minimum monthly payment and

5

terminating those who fail to do so, without inquiring into those

6

participants’ ability to pay; and

7

g. Whether Defendants’ policy of terminating participants who cannot

8

afford to make a minimum monthly payment violates the Due Process

9

and Equal Protection Clauses of the Fourteenth Amendment to the

10

U.S. Constitution.

11

Typicality: Fed. R. Civ. P. 23(a)(3)

12

470. The Named Plaintiffs’ claims are typical of the claims of the members of

13 the Class, and they have the same interests in this case as all other members of the Class

14 that they represent.

15

471. The determination whether the Defendants’ scheme of policies, practices,

16 and customs is unlawful in the ways alleged will determine the claims of the named

17 Plaintiffs and every other class member.

18

Adequacy: Fed. R. Civ. P. 23(a)(4)

19

472. Named Plaintiffs are capable of fairly and adequately protecting the

20 interests of the Class because Named Plaintiffs do not have any interests antagonistic

21 to the Class.

22

473. There are no known conflicts of interest among class members, all of

23 whom have a similar interest in vindicating the constitutional rights to which they are

24 entitled.

25

474. Plaintiffs’ counsel are experienced in civil rights litigation and have

26 successfully litigated a number of civil rights class action cases.

27

28 49

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1

475. Many of those cases, like this one, involve unconstitutional penalties

2 based solely on wealth status.

3

Predomination, Injunctive Class: Fed. R. Civ. P. 23(b)(2)

4

476. Class treatment under Rule 23(b)(2) is appropriate because the common

5 questions of law and fact predominate in this case.

6

477. For Named Plaintiffs McKenna Stephens and Lucia Soria, as well as for

7 the members of the Class, this case turns on what the Defendants’ policies and practices

8 are and on whether those policies are lawful.

9

478. The common questions of law and fact listed above are dispositive

10 questions in the case for every member of the Class.

11

479. Because the putative Class challenges the Defendants’ scheme as

12 unconstitutional through injunctive relief that would apply to every member of the

13 Class, Rule 23(b)(2) certification is proper.

14

Predomination, Damages Class: Fed. R. Civ. P. 23(b)(3)

15

480. Class treatment under Rule 23(b)(3) is appropriate because the common

16 questions of law and fact overwhelmingly predominate in this case.

17

481. For every Named Plaintiff, as well as for the members of the Class, this

18 case turns on what the Defendants’ policies and practices are and on whether those

19 policies are lawful.

20

482. The common questions of law and fact listed above are dispositive

21 questions in the case of every member of the Class.

22

483. Moreover, the question of liability can therefore be determined on a class-

23 wide basis.

24

484. To the extent that individual damages will vary, they will vary depending

25 in large part on the amount of time that a person was subjected to the unlawful scheme

26 and the amount of money coerced from them.

27

28 50

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1

485. Determining damages for individual class members can thus typically be

2 handled in a ministerial fashion based on easily verifiable records in the Defendants’

3 possession.

4

486. If need be, individual hearings on class members’ specific damages based

5 on special circumstances and particular hardships caused by Defendants’ scheme can

6 be held after class-wide liability is determined.

7

CLAIMS FOR RELIEF

8

Count One: Wealth-Based Discrimination in Violation of the

9

Fourteenth Amendment

10 Brought under 42 U.S.C. § 1983 by Named Plaintiffs DeShawn Briggs, Mark Pascale,

and Lucia Soria on behalf of themselves and all others similarly situated against all

11

Defendants for damages.

12

13

487. Defendants, acting in concert under color of state law, enacted, enforced,

14 and continue to enforce a policy, practice, and custom of subjecting diversion

15 participants to longer terms of diversion supervision while under threat of felony

16 prosecution, which include in-person reporting, drug and alcohol testing requirements,

17 and increased payments, solely because of their inability to pay fees associated with the

18 program.

19

488. This policy, practice, and custom of penalizing individuals based solely

20 on wealth status violates the Due Process and Equal Protection Clauses of the

21 Fourteenth Amendment to the U.S. Constitution.

22

489. As a direct and proximate cause of Defendants’ unlawful policy, practice,

23 and custom, Plaintiffs have suffered violations of their constitutional rights and thus are

24 entitled to compensatory damages for their injuries.

25

490. Defendant TASC’s actions were willful, deliberate, and malicious, and

26 involved reckless or callous indifference to Plaintiffs’ constitutional rights.

27 Accordingly, Plaintiffs are entitled to recover punitive damages—in addition to

28 compensatory damages—against Defendant TASC.

51

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1

Count Two: Wealth-Based Discrimination in Violation of the

2

Fourteenth Amendment

3 Brought under 42 U.S.C. § 1983 by Named Plaintiffs McKenna Stephens and Lucia

Soria on behalf of themselves and all others similarly situated against all Defendants

4

for injunctive relief; and by Plaintiff Taja Collier on her own behalf against

5

Defendant TASC for injunctive relief.

6

491. Defendants, acting in concert under color of state law, enacted, enforced,

7 and continue to enforce a policy, practice, and custom of subjecting participants to

8 longer terms of diversion and/or terminating them from the diversion program based on

9 wealth status.

10

492. Defendants subject diversion participants to longer terms of diversion

11 supervision while under threat of felony prosecution, which include in-person

12 reporting, drug and alcohol testing requirements, and increased payments, solely

13 because of their inability to pay fees associated with the program.

14

493. Pursuant to a written policy, Defendants terminate participants who

15 cannot afford to make specific minimum monthly payments toward diversion program

16 fees and subsequently prosecute them for felony possession of marijuana.

17

494. These policies, practices, and customs violate the Due Process and Equal

18 Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.

19

495. As a direct and proximate cause of Defendants’ unlawful policies,

20 practices, and customs, Plaintiffs will continue to suffer violations of their

21 constitutional rights unless Defendants are enjoined.

22

496. Plaintiffs Stephens and Soria are participants in Defendants’ diversion

23 program and cannot afford to pay the fees required to complete the program in 90 days.

24

497. Plaintiffs Stephens and Soria seek to enjoin Defendants from requiring

25 them, and all others similarly situated, to remain on diversion for more than 90 days

26 solely because they cannot afford to pay the fees necessary to complete the diversion

27 program.

28 52

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1

498. Plaintiffs Stephens and Soria also cannot afford to pay the minimum

2 monthly fees set by Defendant TASC.

3

499. Plaintiffs Stephens and Soria seek to enjoin Defendants from terminating

4 them, and all others similarly situated, from the diversion program solely because they

5 cannot afford to pay minimum monthly fees.

6

500. Plaintiff Collier is a participant in Defendants’ diversion program and

7 cannot afford to pay the fees required to complete the program.

8

501. Plaintiff Collier seeks to enjoin Defendant TASC from forcing her to

9 remain on diversion solely because she cannot afford to pay the fees necessary to

10 complete the diversion program.

11

502. Plaintiff Collier also cannot afford to pay the minimum monthly fees set

12 by Defendant TASC.

13

503. Plaintiff Collier seeks to enjoin Defendant TASC from terminating her

14 from the diversion program solely because she cannot afford to pay monthly minimum

15 fees.

16

Count Three: Wealth-Based Discrimination in Violation of the

17

Fourteenth Amendment

18 Brought under 42 U.S.C. § 1983 by Plaintiff Taja Collier on her own behalf against all Defendants for damages and against Defendant TASC for injunctive relief.
19

20

504. Defendants, acting in concert under color of state law, enacted, enforced,

21 and continue to enforce a policy, practice, and custom of not allowing participants in

22 Defendants’ diversion program to complete drug and alcohol tests unless those

23 participants can pay for them at the time of the test.

24

505. Defendants, acting in concert under color of state law, also enacted,

25 enforced, and continue to enforce a policy, practice, and custom of failing participants

26 from the program because those participants were not permitted to take drug and

27 alcohol tests solely because they were unable to afford them.

28 53

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1

506. These policies, practices, and customs penalized Plaintiff Collier based

2 solely on her wealth status in violation of the Due Process and Equal Protection Clauses

3 of the Fourteenth Amendment to the U.S. Constitution.

4

507. As a direct and proximate cause of Defendants’ unlawful policies,

5 practices, and customs, Plaintiff Collier suffered violations of her constitutional rights

6 and thus is entitled to compensatory damages for her injuries.

7

508. Defendant TASC’s actions were willful, deliberate, and malicious, and

8 involved reckless or callous indifference to Plaintiff Collier’s constitutional rights.

9 Accordingly, she is entitled to recover punitive damages—in addition to compensatory

10 damages—against Defendant TASC.

11

509. Plaintiff Collier is still a participant in Defendants’ diversion program and

12 cannot afford to pay the program’s fees or the fees required to take drug and alcohol

13 tests.

14

510. Plaintiff Collier therefore seeks to enjoin Defendant TASC from refusing

15 to allow her to take drug and alcohol tests solely because she is unable to pay for them.

16

511. Plaintiff Collier also seeks to enjoin Defendant TASC from terminating

17 her from the diversion program because she did not take drug and alcohol tests solely

18 because she could not afford them.

19 Count Four: Unreasonable Searches and Seizures in Violation of the Fourth and

20

Fourteenth Amendments

21 Brought under 42 U.S.C. § 1983 by Named Plaintiffs DeShawn Briggs, Mark Pascale,

and Lucia Soria on behalf of themselves and all others similarly situated against all

22

Defendants for damages.

23

512. Defendants, acting in concert under color of state law, enacted, enforced,

24 and continue to enforce a policy, practice, and custom of requiring urinalysis to test for

25 drug and alcohol consumption for individuals who remain on the marijuana diversion

26 program solely because they were unable to pay the required fees.

27

28 54

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1

513. This policy, practice, and custom violates the right to be free from

2 unreasonable searches and seizures under the Fourth Amendment to the U.S.

3 Constitution.

4

514. As a direct and proximate cause of Defendants’ unlawful policy, practice,

5 and custom, Plaintiffs have suffered violations of their bodily liberty and integrity and

6 are entitled to compensatory damages for their injuries.

7

515. Defendant TASC’s actions were knowing, willful, deliberate, and

8 malicious, and involved reckless or callous indifference to Plaintiffs’ constitutional

9 rights. Accordingly, Plaintiffs are entitled to recover punitive damages—in addition to

10 compensatory damages—against Defendant TASC.

11 Count Five: Unreasonable Searches and Seizures in Violation of the Fourth and

12

Fourteenth Amendments

13 Brought under 42 U.S.C. § 1983 by Named Plaintiffs McKenna Stephens and Lucia

Soria on behalf of themselves and all others similarly situated against all Defendants

14

for injunctive relief; and by Plaintiff Taja Collier on her own behalf against

15

Defendant TASC for injunctive relief.

16

516. Defendants, acting in concert under color of state law, enacted, enforced,

17 and continue to enforce a policy, practice, and custom of requiring urinalysis to test for

18 drug and alcohol consumption for individuals who remain on the marijuana diversion

19 program solely because they were unable to pay the required fees.

20

517. This policy, practice, and custom violates the right to be free from

21 unreasonable searches and seizures under the Fourth Amendment to the U.S.

22 Constitution.

23

518. As a direct and proximate cause of Defendants’ unlawful policy, practice,

24 and custom, Plaintiffs will suffer violations of their bodily liberty and integrity unless

25 Defendants are enjoined.

26

519. Plaintiffs Stephens and Soria are currently participants in Defendants’

27 diversion program and cannot afford to pay the fees required to complete the program

28 in 90 days. 55

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 56 of 57

1

520. Plaintiffs Stephens and Soria seek to enjoin Defendants from requiring

2 them, and all others similarly situated, to submit to drug and alcohol testing after 90

3 days in the program if the sole reason they remain on the program is that they cannot

4 afford to pay the fees necessary to complete it.

5

521. Plaintiff Collier is still a participant in Defendants’ diversion program and

6 cannot afford to pay the fees required to complete the diversion program.

7

522. Plaintiff Collier therefore requests that this Court enjoin Defendant TASC

8 from requiring her to take drug and alcohol tests solely because she cannot afford to

9 pay the fees necessary to complete the diversion program.

10

REQUEST FOR RELIEF

11

WHEREFORE, the Plaintiffs demand a jury trial for all issues so appropriate

12 and request this Court to issue the following relief:

13

A. That this action be certified as a class action pursuant to Rule 23 of the

14 Federal Rules of Civil Procedure, declaring Named Plaintiffs DeShawn Briggs, Mark

15 Pascale, McKenna Stephens, and Lucia Soria as representatives of their respective

16 Classes and Named Plaintiffs’ counsel as counsel for the Classes;

17

B. A judgment compensating the Plaintiffs and the Classes of similarly

18 situated individuals for the damages that they suffered as a result of the Defendants’

19 unconstitutional and unlawful conduct in an amount to be determined at trial;

20

C. A judgment granting the punitive damages authorized by statute based

21 on Defendant TASC’s willful and egregious violations of the law;

22

D. A judgment enjoining Defendants from further unconstitutional and

23 unlawful conduct against Named Plaintiffs McKenna Stephens and Lucia Soria and

24 the class they represent;

25

E. A judgment enjoining Defendant TASC from further unconstitutional

26 conduct against Plaintiff Taja Collier;

27

28 56

Case 2:18-cv-02684-EJM Document 110 Filed 09/23/19 Page 57 of 57

1

F. An order and judgment granting reasonable attorneys’ fees and costs

2 pursuant to 42 U.S.C. § 1988 and 18 U.S.C. § 1964; and

3

G. Such other and further relief as the Court deems just and proper.

4 DATED this 26th day of August, 2019.

5

Respectfully submitted,

6

OSBORN MALEDON, P.A. 7

Timothy J. Eckstein

8

Joshua D. Bendor

2929 N. Central Ave., Suite 2100

9

Phoenix, Arizona 85012-2793

10

CIVIL RIGHTS CORPS 11

/s/ A. Dami Animashaun

12

A. Dami Animashaun

Katherine Chamblee-Ryan

13

Olevia Boykin

910 17th Street NW, Second Floor

14

Washington, D.C. 20006

15

Attorneys for Plaintiffs

16

17

18

19

20

21

22

23

24

25

26

27

28 57