1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Richard Rynn, 

Plaintiff, 

v. 

Gregory A. McKay, et al., 

Defendants. 

No. CV-18-00414-PHX-JJT

ORDER 

 At issue are four Motions to Dismiss (Docs. 9, 12, 15, 52) and a Joinder (Doc. 21) 

filed by Defendants in this matter, to which Plaintiffs filed two Responses (Docs. 36, 56) 

and the moving Defendants filed Replies (Docs. 41, 43, 44, 57). The Court resolves the 

Motions without oral argument. See LRCiv 7.2(f). 

I. BACKGROUND 

 According to the Complaint (Doc. 1-1 at 6-18, Compl.), Plaintiff Richard Rynn 

appears pro se in this matter on behalf of both himself and M.R., his minor daughter. 

Rynn names 14 Defendants in the Complaint: Arizona Department of Economic Security 

(“DES”); Arizona Department of Child Safety (“DCS”); DES Director Cara Christ; DCS 

Director Gregory A. McKay; employees of these agencies Cathee Cottee, Maria Rojas, 

Sarah Ferrell, Candy Zammit,1

 and Christine Miles; La Frontera Arizona EMPACT-SPC 

(“EMPACT”); EMPACT’s employees Renee Miller and Nathan Thorpe; UHS of 

 

1

 Defendants contend that Zammit is not an employee of these agencies, but rather an employee of UHS of Phoenix, LLC d/b/a Quail Run Behavioral Health. (E.g., Docs. 

12, 41.) 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Phoenix, LLC d/b/a Quail Run Behavioral Health; and Desert Vista Behavioral Health 

Center.2

 In the Complaint, Rynn alleges that, on an unspecified date, he and his wife 

checked their daughter M.R. into Quail Run for treatment of an anxiety disorder. After 

between seven and ten days passed, they went to retrieve M.R., who was under an order 

from her doctor to be discharged. At the discharge meeting, Quail Run employees asked 

to keep M.R. for three more days, to which Rynn’s wife agreed but he did not. Quail Run 

did not discharge M.R. 

 When Rynn and his wife went downstairs to inquire about M.R.’s extended stay, 

Zammit said she was calling the police and DCS. When DCS arrived, Zammit reported 

that Rynn “threatened to kill them all,” which Rynn denied. DCS took custody of M.R. 

and did not return her to her parents. 

 Rynn, on behalf of himself and M.R., sued Defendants in state court, and 

Defendants removed the action to this Court. Rynn raises six claims against all 

Defendants grouped together: (1) interference with parent/child relational interest; (2) 

intentional infliction of emotional distress; (3) wrongful imprisonment; (4) violation of 

civil rights under 42 U.S.C. § 1983 (“§ 1983”); and (5) and (6) negligence. The moving 

Defendants now ask the Court to dismiss all of the claims against them by way of four 

Motions: Quail Run joined by Zammit (collectively, “Quail Run”) (Doc. 9, QR MTD; see 

also Doc. 21); Desert Vista (Doc. 12, DV MTD); and two Motions by EMPACT, Miller 

and Thorpe (collectively, “EMPACT”) (Doc. 15, EMPACT 1st MTD; Doc. 52, 

EMPACT 2d MTD). 

II. LEGAL STANDARD 

A complaint must include “only ‘a short and plain statement of the claim showing 

that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the 

. . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 

 

2

 Rynn also names as Defendants the spouses of the individual Defendants listed 

here, to reach the marital property. 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Fed. R. Civ. 

P. 8(a). A dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a 

claim can be based on either (1) the lack of a cognizable legal theory or (2) insufficient 

facts to support a cognizable legal claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 

699 (9th Cir. 1990). “While a complaint attacked by a Rule 12(b)(6) motion does not need 

detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his 

‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 

(citations omitted). The complaint must thus contain “sufficient factual matter, accepted as 

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009) (quoting Twombly, 550 U.S. at 570). “[A] well-pleaded complaint may proceed 

even if it strikes a savvy judge that actual proof of those facts is improbable, and that 

‘recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. 

Rhodes, 416 U.S. 232, 236 (1974)). 

III. ANALYSIS 

 A. Rynn’s Pro Se Appearance

 All moving Defendants argue that Rynn cannot act as lawyer for his daughter, 

M.R., and the Court agrees. (E.g., QR MTD at 9-10.) A party may represent himself in 

federal court, even if he is not a licensed attorney. 28 U.S.C. § 1654. And, as Rynn 

argues, a parent may act as a “next friend” to sue on behalf of a minor child. Fed. R. Civ. 

P. 17(c)(2). But a non-attorney parent cannot act as an attorney for his child, even if the 

parent is appearing on behalf of the child as “next friend.” Johns v. Cty. of San Diego, 

114 F.3d 874, 876 (9th Cir. 1997) (holding “a non-attorney parent must be represented by 

counsel in bringing an action on behalf of his or her child” (quoting Meeker v. Kercher, 

782 F.2d 153, 154 (10th Cir. 1986))). The Court will thus require Rynn to obtain licensed 

counsel to proceed with the claims of his daughter in this Court. If Rynn does not obtain 

counsel, he may proceed in this action only on behalf of himself and his own claims, not 

those of M.R. 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

B. Failure to Plead with Requisite Particularity 

To begin with, Rynn’s Complaint is deficient under Federal Rule of Civil 

Procedure 8, because it does not adequately distinguish between the 14 Defendants in 

terms of their alleged conduct; indeed, the only specific conduct alleged in the Complaint 

is that of Quail Run and Zammit—who allegedly reported to DCS that Rynn “threatened 

to kill them all”—and DCS—who allegedly did not return M.R. to her parents. A plaintiff 

may not collectively accuse multiple defendants of committing misdeeds through the 

expedience of the title “Defendants.” Such group pleading fails to comply with Rule 

8(a)(2) because it does not give fair notice of the claims against each Defendant with the 

requisite specificity. Riehle v. Bank of America, N. A., No. CV-12-00251-PHX-NVW, 

2013 WL 1694442, at *2 (D. Ariz. Apr. 18, 2013). For this initial reason, the Court will 

dismiss the entire Complaint. 

The Court also notes that Count 6, for negligence, appears to be duplicative, because 

it is a copy of Count 5, also for negligence. 

 C. Immunity Under A.R.S. §§ 13-3620 and 8-805 

Arizona law provides that a person who reasonably believes that a minor has been 

the subject of physical abuse or neglect must report the abuse to DCS, and the person is 

“immune from any civil or criminal liability by reason of such action, unless such person 

acted with malice or unless such person has been charged with or is suspected of abusing, 

abandoning or neglecting the child or children in question.” A.R.S. § 13-3620(A), (J). 

The Court agrees with the moving Defendants that Rynn’s allegations are insufficient to 

show that Quail Run is not immune from Rynn’s claims.3

 (E.g., QR MTD at 2-4.) To 

state a claim, Rynn must allege sufficient facts from which the Court can plausibly infer 

that Quail Run acted with malice or is suspected of abusing M.R. itself. See A.R.S. §§ 13-

3620(J); 8-805. For this reason, the Court will dismiss Rynn’s claims against Quail Run. 

 

3

 As the Court already noted, Rynn alleges only that Quail Run reported him to DCS. The Complaint contains no factual allegations forming the basis of any claims against the other Defendants, except against DCS for refusing to return M.R. to her 

parents, so no claims even exist against the other Defendants. 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Because it is possible that Rynn can cure this defect by amendment, the Court will give 

Rynn an opportunity to amend the Complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th 

Cir. 2000). 

D. Claim Under § 1983

 “To sustain an action under § 1983, a plaintiff must show (1) that the conduct 

complained of was committed by a person acting under color of state law; and (2) that the 

conduct deprived the plaintiff of a constitutional right.” Balistreri v. Pacifica Police 

Dept., 901 F.2d 696, 699 (9th Cir. 1988). The Court agrees with the moving Defendants, 

(e.g., QR MTD at 5-6), that Rynn’s allegations are insufficient to show that Quail Run 

and EMPACT were state actors, as required to sustain a § 1983 claim against them. See 

Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 926-27 (9th Cir. 2011). 

Indeed, there are no allegations whatsoever of actions taken by EMPACT. The Court will 

thus dismiss Rynn’s § 1983 claim against Quail Run and EMPACT with leave to amend. 

See Lopez, 203 F.3d at 1130. 

E. Punitive Damages 

 The moving Defendants also argue that the Complaint fails to adequately state a 

prayer for punitive damages. (E.g., QR MTD at 6-9.) Under Arizona law, punitive damages 

are awardable if “a reasonable jury could find the requisite evil mind by clear and 

convincing evidence.” Thompson v. Better–Bilt Aluminum Prods. Co., 832 P.2d 203, 211 

(Ariz. 1992). In determining whether a defendant exhibited an “evil mind,” courts 

consider “the nature of the defendant's conduct, including the reprehensibility of the 

conduct and the severity of the harm likely to result, as well as the harm that has occurred 

[in addition to] [t]he duration of the misconduct, the degree of defendant's awareness of 

the harm or risk of harm, and any concealment of it.” Id. at 556. The primary question 

where punitive damages are concerned is motive, because gross negligence and reckless 

disregard are not enough. Volz v. Coleman Co., Inc., 748 P.2d 1191, 1194 (Ariz. 1987). 

With regard to a § 1983 claim, “a jury may be permitted to assess punitive 

damages in an action under § 1983 when the defendant’s conduct is shown to be 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

motivated by evil motive or intent, or when it involves reckless or callous indifference to 

the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). 

 Like the other claims in the Complaint, the allegations pertaining to a prayer for 

punitive damages are entirely inadequate. There are no factual allegations from which the 

Court could plausibly infer that Defendants acted with the requisite evil mind in this case; 

indeed, as the Court has repeatedly pointed out, there are no factual allegations 

whatsoever regarding actions taken by most of the Defendants, let alone actions 

demonstrating the requisite evil mind. As a result, the Court will dismiss the prayer for 

punitive damages for this additional reason, with leave to amend. See Lopez, 203 F.3d at 

1130. 

F. Non-Jural Entity 

In Arizona, a plaintiff may sue a government entity only if the state legislature has 

granted that entity the power to sue or be sued. Schwartz v. Superior Court, 925 P.2d 

1068, 1070 (Ariz. Ct. App. 1996). Desert Vista is a subdivision of the Maricopa County 

Special Health Care District, A.R.S. § 48-5501 et seq., but no statutory authorization 

exists to sue Desert Vista. (DV MTD at 5-6.) Because Desert Vista is a non-jural entity, 

the Court will dismiss Rynn’s claims against it with prejudice. Thus, the Court need not 

address Desert Vista’s alternative argument that Rynn did not meet the requirements of 

submitting a Notice of Claim to it under A.R.S. § 12-821.01. (DV MTD at 6-8.)

 G. Failure to Serve Miller and Thorpe

 In its Motion and first responsive pleading, EMPACT states that Rynn failed to 

serve its employees, Miller and Thorpe, with the Complaint and Summons. (EMPACT 

1st MTD at 3; Doc. 19, EMPACT Answer ¶ 17.) In his Response, Rynn concedes as 

much, stating that the process server “was turned away with a denial of all information.” 

(Doc. 36 at 8 n.1.) Rynn asks for an additional 60 days to ascertain the home addresses of 

Miller and Thorpe. 

 In an Order dated February 7, 2018 (Doc. 8), the Court warned Rynn that any 

Defendant not served with the Complaint and Summons by April 4, 2018, as required by 
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Federal Rule of Civil Procedure 4(m), would be terminated from this action. Rynn never 

filed a motion for an alternative means of service or an extension of time before the 

April 4, 2018 deadline, and only conceded the service defect as to Miller and Thorpe in 

his Response, dated April 17, 2018 (Doc. 36), which was untimely.4

 While the Court 

affords the benefit of the doubt to pro se parties, they must still follow the Court’s rules 

and Orders. Faretta v. California, 422 U.S. 806, 834 & n.46 (1975) (noting that selfrepresentation is not “a license not to comply with relevant rules of procedural and 

substantive law”); Am. Ass’n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 

1107-08 (9th Cir. 2000) (disabusing a pro se defendant of the notion that he was excused 

from complying with the procedural rules because they were “not something a pro se 

defendant can be expected to know,” and concluding that, because defendant caused the 

default, he was not entitled to have the court set it aside). Accordingly, the Court must 

terminate Miller and Thorpe from this action, as the Court warned in its previous Order 

(Doc. 8). 

H. Failure to Serve Preliminary Expert Affidavits 

The moving Defendants join together to ask the Court to dismiss Rynn’s claims 

for an additional reason, namely, failure to timely serve preliminary expert affidavits. In 

an Order dated May 23, 2018, the Court required Rynn to serve preliminary expert 

reports by May 27, 2018, pursuant to A.R.S. § 12-2603. (Doc. 50.) Although a state law 

requirement, A.R.S. § 12-2603 has been deemed substantive and thus applicable in 

federal court. Kaufman v. Jesser, 884 F. Supp. 2d 943, 949 (D. Ariz. 2012). 

 In response, Rynn argues that no such expert reports are necessary, because he is 

not alleging medical malpractice, but rather liability in connection with telling DCS that 

he “threatened to kill them all.” (Doc. 56 at 4.) The moving Defendants argue that such 

reports are required under Arizona law any time a plaintiff brings suit against a medical 

 

4

 Rynn’s statement in his Notice of Filing Affidavits of Service (Doc. 24) that 

“Miller and Thorp[e] appeared as movants in the motion to dismiss” is true, but is not a 

substitute for adequate service. Miller and Thorpe’s appearance in the motion to dismiss was to argue that they had not been properly served. (EMPACT 1st MTD at 3.) 
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

care provider for breach of the standard of care. (Doc. 57.) The Court agrees with the 

latter point, and finds that any claim Rynn has tried to state against the moving 

Defendants for breach of a duty of care—including the negligence claims in Count 5, as 

repeated in Count 6—must be dismissed for failure to timely provide the required 

preliminary expert report. See A.R.S. § 12-2603(F). 

III. CONCLUSIONS 

With regard to the claims of M.R., a minor, she must obtain licensed legal counsel. 

Accordingly, M.R. shall retain legal counsel who shall file a notice of appearance by 

September 7, 2018. In the absence of the timely appearance of counsel on behalf of M.R., 

Rynn may only proceed with his own claims in this action, if he chooses to file an 

Amended Complaint. 

 The Court dismisses Rynn’s claims against Defendant Desert Vista Behavioral 

Health Center with prejudice, because it is not a jural entity under Arizona law. The 

Court also terminates Renee Miller and Nathan Thorpe as Defendants in this action, 

because Rynn failed to timely serve them with the Complaint and Summons under 

Rule 4. In addition, Rynn may not bring claims against any of the remaining moving 

Defendants—UHS of Phoenix, LLC d/b/a Quail Run Behavioral Health, Candy Zammit, 

and EMPACT—alleging medical malpractice or negligence, because he failed to comply 

with Arizona law and the Court’s Order to timely serve preliminary expert reports. 

 The Court dismisses the balance of the Complaint with leave to amend, for all of 

the following reasons: 

 Under Rule 8, the Complaint fails to adequately distinguish between the 14 

Defendants in terms of their alleged conduct, and indeed alleges no conduct 

whatsoever of most of the named Defendants. 

 Under A.R.S. §§ 13-3620(J) and 8-805, the Complaint fails to allege sufficient 

facts from which the Court can plausibly infer that any Defendant acted with 

malice or is suspected of abusing M.R. itself. 
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 Under 42 U.S.C. § 1983, the Complaint’s allegations are insufficient to show that 

Quail Run and EMPACT were state actors, as required to sustain a § 1983 claim 

against them. 

 Regarding the punitive damages prayer, the Complaint contains no factual 

allegations from which the Court could plausibly infer that Defendants acted with 

the requisite evil mind in this case. 

 IT IS THEREFORE ORDERED granting Quail Run Behavioral Health’s 

Motion to Dismiss (Doc. 9). 

IT IS FURTHER ORDERED granting Defendant Desert Vista Behavioral 

Health Center’s Motion to Dismiss (Doc. 12). 

IT IS FURTHER ORDERED granting Defendant EMPACT-Suicide Prevention 

Center, an Arizona Nonprofit Corporation, Miller and Thorpe’s Motion to Dismiss 

(Doc. 15). 

IT IS FURTHER ORDERED granting Defendants EMPACT-Suicide 

Prevention Center, an Arizona Nonprofit Corporation, Miller, Thorpe, UHS of Phoenix, 

LLC d/b/a Quail Run Behavioral Health, Candy Zammit, and Desert Vista Behavioral 

Health Center’s Motion to Dismiss Pursuant to A.R.S. § 12-2603(F) (Doc. 52). 

IT IS FURTHER ORDERED that Plaintiff M.R. shall retain legal counsel who 

shall file a notice of appearance by September 7, 2018. 

IT IS FURTHER ORDERED that Plaintiffs may file an Amended Complaint 

that complies with this Order and all applicable rules on or before September 14, 2018. 

IT IS FURTHER ORDERED directing the Clerk of Court to close this case 

without further Order if Plaintiffs fail to timely file an Amended Complaint. 

 Dated this 16th day of August, 2018. 

Honorable John J. Tuchi

United States District Judge