NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT ANGEL GOFF, FKA Angel Kraft,

Plaintiff

- Appellee,

v. JUAN IGNACIO RAMIREZ, Jr.,

Defendant

- Appellant,
and STATE OF ARIZONA; CARSON MCWILLIAMS; BERRY LARSON; CHARLES L. RYAN,

Defendants. No. 18

- 17216
D.C. No. 2:17

- cv - 01623

- JJT

- DMF

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding Argued and Submitted December 4, 2019 San Francisco, California Before: CALLAHAN and BADE, Circuit Judges, and BOUGH, * * District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. 

# FILED

FEB 13 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Angel Goff

, a transgender woman in the custody of the Arizona Department
of Correc tions (“ADOC”) , fi led suit in the district court against corrections officer Juan Ignacio Ramirez , Jr. and others asserting civil rights claims under 42 U.S.C. § 1983 and state tort claims . Goff’s allegations are based on Ramirez’s conduct
between the lat t er part of 2014 and mid

- 2016

. Ramirez appeals the district court’s
denial of his motion to dismiss

. Ramirez argues that he has statutory immunity from Goff’s tort claims under Ariz. Rev. Stat. § 31

- 201.01(F) , and that he has qualified immunity from Goff’s § 1983 claims.
W e have jurisdiction under 28 U.S.C. § 1291 and th e collateral review
doctrine

. See Mitchell v. Forsyth , 472 U.S. 511, 52 4

- 2 5, 530 (1985) ; Ashcroft v. Iqbal , 556 U.S. 662, 672 (2009) (citing Behrens v. Pelletier , 516 U.S. 299, 30 7 (1996)). We review de novo, Hernandez v. City of San Jose , 897 F.3d 1125, 1132 (9th Cir. 2018) , and affirm.
I. The district court properly denied Ramirez’s motion to dismiss the tort claims against him individually

. We are not persuaded by Ramirez ’s argument that
he i s entitled to statutory immunity under Arizona law

. Rami rez argues that Goff’s

state tort claims against him are barred by Ariz. Rev. Stat. § 31

- 201.01(F) , which provides that “ [a] ny and all causes of action that may arise out of tort caused by the director, prison officers or employees of the department, within the scope of their3

legal duty, shall ru n only against the state.” Although, as Ramirez argues, the phrase “any and all” is expansive, see In re Estate of Lamparella, 109 P.3d 959, 964 (Ariz. Ct. App. 2005), it is limited by the phrase “within the scope of their legal duty,” Ariz. Rev. Stat. § 31

- 201.01(F). The statute “does not limit [a] plaintiff ’s right to sue individual employees for actions taken outside the scope of their legal duty.” Howland v. State , 818 P.2d 1169, 1173 (Ariz. Ct. App. 1991)

. Ramirez’s alleged conduct, “ gra bbing Ms. Goff’s breasts and other body parts during ‘pat downs’ and forcing himself against her for his own sexual pleasure ” and “forcing Ms. Goff to perform oral sex on him” w as “outside the scope of [his] legal duty” as a corrections officer. See i d

. Ramirez cites Arizona Department of Corrections Order (“DO” or “Department Order” ) 708 , which governs searches, and argues that because “part
of the tortious conduct . . . occurred during ‘pat downs,’” it was within the scope of his legal duties. See DO 708, § 1.6. However, another Department Orde r strictly prohibits “sexual harassment and any sexual contact or conduct between staff and inmates.” DO 125, § 1.2. Therefore, we reject Ramirez’s argument that his alleged sexual co ntact with Goff was within the scope of his legal duties. Ramirez’s assertion that certain allegations in the second amended complaint
conceded that his conduct was “ within the scope of [ his ] legal duty ” for purposes
of section 31

- 201.01(F) is unp ersuasive because the allegations are reasonably4

viewed as pleading Arizona’s vicarious liability and Ramirez’s individual liability
in the alternative.
II. The district court properly denied Ramirez’s assertion that he was entitled to qualified immunity from Goff’s § 1983 claims alleg ing that Ramirez “grabb[ed] Ms. Goff’s breasts and other body parts during ‘pat downs’ and forc [ed] himself against her for his own sexual pleasure

. ” 1 Whe n a defendant pr esents a qualified immunity defense in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) , “dismissal is not appropriate unless we can determine, based on the complaint itself, that qualified immunity applies.” Groten v. California , 251 F. 3d 844, 851 (9th Cir. 2001). Qualified immunity protects government officials acting in their official capacities from civil liability unless their conduct violates “clearly established statutory or constitutional rights of which a reasonabl e person woul d have known. ” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Goff assert s that Ramirez engaged in excessive force in violation of the Fourth and Eighth A mendment s
. Th e allegations that Ramirez grabbed Goff’s breasts and other body parts during non - routine “pat downs , ” forced himself against her for his own sexual

1 Ramirez does not argue that he is entitled to qualified immunity from Goff’s claim that he forced her to perform oral sex on him.5

pleasure , and that during each encounter Ramirez’s conduct grew more “aggressive and violent” a re sufficient to state a cl aim that Ramirez vio lated Goff’s E ighth
A mendment right s
. See Schwenk v. Hartford , 204 F.3d 1187, 1197

- 98 (9th Cir. 2000)

. We are unpersuaded by Ramirez ’s argument that the law was not clearly
established at the time of the non

- routine “pat downs” and u nsolicited physical

con tact such that a reasonable correction s officer would not have know n that his
actions were unlawful under the Eighth Amendment

. See White v. Pauly , ___ U.S. ___, 137 S. Ct. 548, 551 (2017) ( for a right to be clearly established there does not need to be a case directly on point, but “ ‘ existing precedent must have placed the statutory or constitutional question beyond d ebate. ’ ”) (quoting Mullenix
v. Lewis , 577 U.S. ___, 136 S. Ct. 305, 308 (2017)). We agree with the district
court that our decision in Schwenk clearly established an inmate ’s Eighth
Amendment right not to be sexually abused by a correction s officer who gr abb ed
the inmate ’ s breasts and other body parts and forc ed himself against the inmate in a
sexual manner regardless of the gender of the officer or the inmate

. 204 F.3d at
1197

- 98. Taking Goff’s allegations as true , no reasonable correction s officer could have thought that engaging in unsolicited and forcible sexual contact with an
inmate was reasonable under the circumstances. Additionally, we agree with the district court that Ramirez’s assertion of6

qualified immunity was based on a n in acc urate characterization of Goff’s allegations as describing routine pat down searches and an inaccurate identification
of the Fourth Ame n dment right at issue

. 2 T he district court ’s order did not specifically address whether the allegations stated a n exces sive force claim under
the F ourth Amendment or whether it was clearly established that Ramirez’s alleged
conduct would have violated the Fourth Amendment. However, dismissal of th e Fourth Amendment clai m is inappropriate because, based on the second amended complaint itself, we cannot determine that qualified immunity applies. See Groten , 251 F.3d at 851.
AFFIRMED.

2 Ramirez cited cases that involv ed routine searches and consider ed whether an inmate had a right to privacy under the Fourth Amendment

. S ee Somers v. Thurman , 109 F.3d 614, 617

- 20 (9th Cir. 1997); Grummet v. Rushen , 779 F.2d 491, 493, 495

- 96 (9th Cir. 1985). Goff, however, asserts an excessive force claim under the Fourth Amendment.