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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Montiah Chatman, individually and on behalf 

of her two minor children, J.L.C. and 

E.V.T.P.,

Plaintiffs,

v. 

Marci D Ferrell, et al.,

Defendants.

No. CV-17-03826-PHX-DLR

ORDER 

On February 13, 2020, the Court granted summary judgment to Plaintiffs on count 

one of their complaint brought pursuant to 42 U.S.C. § 1983. (Doc. 129.) Specifically, the 

Court found that, by removing J.L.C. and E.V.T.P. (the “Boys”) from Montiah Chatman’s

custody without judicial authorization and in the absence of exigent circumstances, 

Defendants violated the Fourth and Fourteenth Amendments. (Id.) The parties 

subsequently prepared to proceed to trial, but logistical challenges and safety concerns

stemming from the COVID-19 pandemic caused the matter to be continued for at least six 

months. (Doc. 137.) Facing delayed resolution of the matter, Plaintiffs moved for leave 

to file a second motion for summary judgment addressing their false imprisonment and 

negligence claims. (Doc. 138.) The Court granted the motion, reasoning that a second 

round of dispositive motion practice would not prejudice Defendants and could be 

productive by narrowing the issues prior to trial. Plaintiffs’ second motion for summary 

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judgment is now ripe. (Docs. 147-49.) The Court held oral argument on December 9, 2020

and thereafter took the matter under advisement. (Doc. 152.) Plaintiff’s motion is granted

in part and denied in part as described below.1 

I. False Imprisonment 

Under Arizona law, a defendant who confines another person without that person’s 

consent and without lawful authority is liable for false imprisonment. Spears v. Ariz. Bd. 

of Regents, 37 F. Supp. 3d 893, 922 (D. Ariz. 2019) (citing Slade v. City of Phoenix, 541 

P.2d 550, 552 (Ariz. 1975)). To be found liable, each defendant need not have physically 

confined the other person, themselves. Rather, a defendant is subject to liability for false 

imprisonment if (1) the defendant acted with the intent to confine another person within 

boundaries fixed by the defendant; (2) the defendant’s act resulted in such confinement; 

and, (3) the other person was conscious of the confinement or was harmed by it. Gau v. 

Smitty's Super Valu, Inc., 901 P.2d 455, 458 (Ariz. App. 1995).

At oral argument, Defendants conceded that they each intentionally caused the Boys

to be taken into custody without consent, and that the Boys were conscious of the 

confinement or harmed by it. (Doc. 152.) Nevertheless, Defendants argued that they are 

not liable for false imprisonment because A.R.S. § 8-821 provided them with lawful 

authority to remove the boys. However, as the Court explained in its prior order, childremovals in the absence of exigent circumstances2 or judicial authorization, such as what 

occurred here, violate the Fourth and Fourteenth Amendments. The Constitution is the 

supreme law of the land, and conduct that violates the supreme law of the land, by 

definition, lacks lawful authority. See Worcester v. Ga., 31 U.S. 515, 571-72 (1832)

(M’Lean, J., concurring) (“No one can deny that the constitution of the United States is the 

1 The Court incorporates by reference the background section from its prior 

summary judgment order. (Doc. 129 at 1-4.) 

2 As explained in the Court’s February 13, 2020 decision, exigent circumstances in 

the child-removal context exist only when government officials have reasonable cause to 

believe that: (1) at the time of seizure, the children are in imminent danger of suffering 

serious physical injury; (2) the scope and degree of the intrusion is reasonably necessary 

to avert that specific injury; and (3) there is insufficient time to obtain a warrant to prevent 

such injury. Birair v. Kolycheck, No. CV-15-01807-PHX-DJH, 2018 WL 4220759, at *9 

(D. Ariz. Sept. 5, 2018) (quoting Kirkpatrick v. Cty. of Washoe, 843 F.3d 784, 790 (9th 

Cir. 2016)). 

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supreme law of the land; and consequently, no act of any state legislature or of congress, 

which is repugnant to it, can be of any validity.”). In sum, because they violated the Fourth 

and Fourteenth Amendments by removing and confining the boys, Defendants could not 

have simultaneously acted with lawful authority. Plaintiffs have therefore established, as 

a matter of law, that each defendant confined the Boys without their consent and without 

lawful authority. The Court will grant summary judgment to Plaintiffs on their false 

imprisonment claim. 

II. Negligence 

“To establish a claim for negligence, a plaintiff must prove four elements: (1) a duty 

requiring the defendant to conform to a certain standard of care; (2) a breach by the 

defendant of the standard; (3) a causal connection between the defendant’s conduct and the 

resulting injury; and (4) actual damages.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007)

(citation omitted). Here, Plaintiffs proffer four negligence per se theories in support of 

their negligence claim against Marci Ferrell and Cindy Chrisman. Specifically, they allege

that A.R.S. §§ 8-821(B) and (F), 8-822(C) and 8-823 imposed duties on Ms. Ferrell and/or

Ms. Chrisman, which they violated, causing Plaintiffs psychological trauma. The Court 

will address the parties’ arguments by considering each statutory provision, in turn. 

A. A.R.S. § 8-821(B)

Section 8-821(B) states, in relevant part, 

B. A child may be taken into temporary custody by a peace 

officer, a child welfare investigator or a child safety worker if 

temporary custody is clearly necessary to protect the child 

because probable cause exists to believe that the child is either:

1. A victim or will imminently become a victim of abuse or 

neglect.

Plaintiffs argue that, because the Court earlier determined that the Boys’ removal violated 

the Fourth and Fourteenth Amendments, Ms. Ferrell and Ms. Chrisman similarly violated 

§ 8-821(B). However, the question, here, is not whether Defendants’ behavior was 

constitutional, but whether it violated § 8-821(B) for negligence purposes. While it is true 

that, to comply with constitutional due-process, child removals require a greater showing 

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than probable cause, the probable cause analysis is relevant because § 8-821(B) makes it 

so. Birair, 2018 WL 4220759, at *9. 

Here, a dispute of material fact exists as to whether Defendants had probable cause 

to believe that J.L.C. and E.V.T.P. were victims of abuse or neglect. Specifically, evidence 

such as J.L.C.’s sexualized behavior and the Boys’ former cohabitation with a registered 

sex offender suggest that Defendants had probable cause to believe that the Boys were 

victims of abuse or neglect. (Doc. 148 at 4.) Therefore, Plaintiffs cannot establish, as a 

matter of law, that Ms. Ferrell and Ms. Chrisman breached their duties under § 8-821(B). 

The Court will consequently deny summary judgment to Plaintiffs on their negligence 

claim stemming from § 8-821(B). 

B. A.R.S. § 8-821(F)

Section 8-821(F)3states that a “child shall not remain in temporary custody for more 

than seventy-two hours excluding Saturdays, Sundays and holidays unless a dependency 

petition is filed.” Here, Defendants do not dispute breach, causation or damages. Instead, 

they assert that § 8-821(F) did not impose a duty on Ms. Ferrell or Ms. Chrisman because 

the harm alleged—psychological trauma to Plaintiffs—was not the harm the subsection

sought to prevent. See Quiroz v. ALCOA Inc., 416 P.3d 824, 829 (Ariz. 2018) (quoting 

Gipson, 150 P.3d at 233) (“A duty may arise from a statute when the plaintiff “is within 

the class of persons to be protected by the statute and the harm that occurred . . . is the risk 

that the statute sought to protect against.”). 

 To ascertain whether the harm alleged was the harm § 8-821(F) sought to prevent, 

the Court must interpret the section’s intent by giving the “words their ordinary meaning 

unless the context suggests a different one.” State ex. Rel. Brnovich v. City of Phoenix, 

468 P.3d 1200, 1205 (Ariz. 2020). Looking to the section’s plain meaning, the Court 

concludes that it was not designed to prevent psychological harm to separated families. 

Section § 8-821 does not include language suggesting that its application aims towards

emotional harm reduction. Rather, in addition to providing a dependency-petition-filing 

3 A.R.S. § 8-821(F) was effective from July 3, 2015 until June 30, 2018. Identical 

requirements are now included in § 8-821(H). 

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exception to the seventy-two-hour return deadline, the section includes an exception for 

“Saturdays, Sundays, and holidays,” suggesting that the section’s purpose is 

administrative. Namely, § 8-821(F) creates a three-business-day processing timetable to 

ensure expeditious resolution of cases. If the section had been designed, instead, to reduce 

emotional harm caused by family separation, it seems unlikely that it would permit longer 

separations during weekends and holidays, a policy that probably exacerbates trauma. 

Because § 8-821(F) was not designed to prevent the harm that Plaintiffs allege, Plaintiffs 

have not met the duty prong as a matter of law. Summary judgment is therefore 

inappropriate on Plaintiffs’ negligence claim stemming from § 8-821(F). 

C. A.R.S. § 8-822(C)

Section 8-822(C) states, in relevant part,

C. [T]he department may not remove a child from the custody 

of the child's parents, guardian or custodian unless both of the 

following occur before the removal:

1. The child safety worker who is recommending the removal 

submits the reasons for removal and supporting information to 

the worker's supervisor.

2. The worker's supervisor reviews the reasons and supporting 

information and approves the removal.

In their motion, Plaintiffs contend, without elaboration, that Ms. Chrisman violated § 8-

822(C) by “approving the removal.” (Doc. 147 at 6.) The Court sought clarification, 

because it had been its understanding that Ms. Ferrell was the relevant “child safety 

worker” and that Ms. Chrisman, the “supervisor,” had reviewed Ms. Ferrell’s reports and 

approved the removal by directing Ms. Ferrell to remove the Boys. At oral argument,

however, Counsel raised, for the first time, the argument that Ms. Chrisman violated § 8-

822(C) by failing to submit her removal recommendation to “someone else” for approval. 

(Doc. 152.) Counsel did not name the individual or group to whom Ms. Chrisman was 

required to submit her recommendation4 or otherwise support Plaintiffs’ reading of the 

4Plaintiffs, in their first motion for summary judgment, suggested that the 

department customarily “staffed” removal decisions and expressed concern that the 

absence of staffing records addressing the Boys’ removal indicates that the decision was 

not staffed. (Doc. 110-4 at 10.) Perhaps Counsel’s reference at oral argument to “someone 

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statute, which appears to require an extra approval step. Without more, Plaintiffs have not 

met their burden to show that Ms. Chrisman breached her duty under § 8-822(C) as a matter 

of law. The Court will deny summary judgment to Plaintiffs on their negligence claim 

arising from this section. 

D. A.R.S. § 8-823

The relevant portion of § 8-823 reads,

A. If a child is taken into temporary custody, [the] child safety 

worker taking the child into custody shall provide written 

notice within six hours to the parent or guardian of the child . . 

. 

B. The written notice shall contain []:

1. Specific reasons as to why the child is being removed. The 

notice shall list the specific factors that caused the 

determination of imminent danger. 

Here, Defendants do not dispute that Ms. Ferrell tendered a temporary custody 

notice (“TCN”) to Ms. Chatman that lacked an explanation of the specific reasons for the 

Boys’ removal. (Doc. 110-2 at 11.) Instead, they assert that they are not liable for a 

violation of the section, because the duty element has not been met. Specifically, they 

argue that the harm alleged—psychological trauma suffered by Ms. Chatman—was not the 

harm § 8-823 sought to prevent. The Court agrees. Section 8-823, titled “Notice of taking 

into temporary custody,” is unequivocally a notice statute. The foreseeable harm arising 

from the violation of such a provision is lack of notice, not emotional distress. Because § 

8-821(F) was not designed to prevent the harm that Plaintiffs allege, the duty prong has not 

been met. Summary judgment is therefore inappropriate on Plaintiffs’ negligence claim 

stemming from § 8-823. 

Because Plaintiffs have not shown they are entitled to relief as a matter of law on 

any of their negligence theories, the Court will deny summary judgment to Plaintiffs on 

their negligence claim. Further, the Court will grant summary judgment to Defendants on 

else” as the final approver was intended to point to the staff group. However, even if 

staffing was an ordinary department practice and the Boys’ removal decision was not 

staffed, § 8-822(C) does not appear to include a staffing requirement. 

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Plaintiffs’ negligence claim insofar as it rests on alleged violations of A.R.S. §§ 8-821(F) 

and 8-823. As a matter of law, these provisions were not designed to prevent the harm 

alleged by Plaintiffs. Consequently, Plaintiffs cannot meet the duty element. An award of 

summary judgment to Defendants is appropriate here, even though they did not move for 

summary judgment, because Plaintiffs had a full and fair opportunity to brief their duty 

arguments. See Whitmire v. Wal-Mart Stores, Inc., 359 F. Supp. 761, 792 (D. Ariz. 2019) 

(quoting In re Harris Pine Mills, 44 F.3d 1431, 1439 (9th Cir. 1995) (the Court may grant 

summary judgment for a nonmovant without notice where “the losing party has had a full 

and fair opportunity to ventilate the issues involved in the motion.”)). For these reasons, 

IT IS ORDERED that Plaintiffs’ motion for summary judgment (Doc. 147) is 

GRANTED IN PART AND DENIED IN PART as detailed above. 

IT IS FURTHER ORDERED that summary judgment is granted to Defendants on 

Plaintiffs’ negligence claim insofar as it rests on alleged violations of A.R.S. §§ 8-821(F) 

and 8-823.

Dated this 23rd day of December, 2020.

Douglas L. Rayes

United States District Judge

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