WO

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

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Shari Ferreira, et al.,

Plaintiffs,

v. 

Joseph M Arpaio, et al.,

Defendants.

No. CV-15-01845-PHX-JAT

ORDER 

 Pending before the Court is Defendants’1 Motion to Dismiss, (Doc. 15), brought in 

response to Plaintiff Shari Ferreira’s Third Amended Complaint (“TAC”), filed on 

December 2, 2015. (Doc. 12). The motion has been fully briefed, and oral argument was 

heard on July 20, 2016. The Court now rules on the motion.

I.

 The Court need not set forth a full recitation of the facts underlying this matter. 

For purposes of adjudicating Defendants’ pending Federal Rule of Civil Procedure 12 

(b)(6) motion, a brief recital of the following facts—taken as true from the TAC—is 

 

1

 Specifically, the motion was brought by Defendants Joseph M. Arpaio, Maricopa 

County, Jeffrey Alvarez, M.D., Deputy Sheriff Cormier, Deputy Sheriff Hewitt, Deputy 

Sheriff Hovanec, Deputy Sheriff Huber, Deputy Sheriff Hansen, Deputy Sheriff S. 

Johnson, Deputy Sheriff Wade, Deputy Sheriff Lt. B. Smith, and Deputy Sheriff Sgt. 

Garcia. (Doc. 15 at 2). The Court will refer to the movants collectively as “Defendants” 

throughout the Order.

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 1 of 21
- 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

sufficient. Plaintiff brought this civil rights action on behalf of decedent Zachary 

Daughtry in her capacity as personal representative of the estate. (Doc. 12 at 1). Daughtry 

was initially arrested on December 12, 2013, and booked into the 4th Avenue Jail 

complex. (Id. at 8). Over the following months, Daughtry “had several assignments and 

transfers” to different facilities, but was ultimately transferred back to the 4th Avenue Jail 

on July 6, 2014. (Id.). Between his initial booking and July 6, Daughtry had been referred 

to “Psychiatric Services” on several occasions in light of “medical and mental health 

issues that required ongoing medical and psychological treatment.” (Id.).

 On July 9, 2014, fellow inmate Defendant Ryan Bates2 was placed in a cell with 

Daughtry after Bates was discovered in a restricted area of the 4th Avenue Jail. (Doc. 12 

at 9 ¶ 42-43). At approximately 2200 hours, officers were “escorting medical personnel 

and conducting a general headcount,” and passed by Daughtry’s cell. (Id. at 12 ¶ 67).

When the officers passed by, they observed Bates standing over Daughtry, who was 

unresponsive and visibly bleeding from the head and face. (Id.). Daughtry received 

medical treatment on-site, and was subsequently transported to Banner Good Samaritan 

Hospital “with life threatening injuries.” (Id. at 12-13). Daughtry suffered “multiple facial 

fractures, major head injuries including orbital fractures, nose fractures, a broken jaw, 

internal injuries, a subdural hematoma to the brain with brain bleed, and severe 

lacerations to his head and left ear.” (Id. at 13). On July 20, 2014, Daughtry passed away 

from his injuries. (Id. at 15 ¶ 76).

 This matter, initially brought in Maricopa County Superior Court, was removed on 

September 16, 2015. (Doc. 1). The Complaint, thrice amended, alleges claims of 

negligence, gross negligence, wrongful death, and constitutional violations under Title 42 

U.S.C. § 1983 (2012). On December 21, 2015, Defendants filed the pending motion to 

dismiss. The motion has been fully briefed, (Docs. 15, 34, 38), and oral argument was 

 

2

 At oral argument, Plaintiff asked that the Court dismiss Defendant Bates from 

the matter for failure to comply with service of process requirements under Federal Rule 

of Civil Procedure Rule 4(m). The Court will do so. In the interest of clarity, the Court 

will continue to refer to Bates as “Defendant” throughout the Order.

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 2 of 21
- 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

heard on July 20, 2016. Having set forth the pertinent factual and procedural background, 

the Court turns to Defendants’ motion.

II.

 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 

meet the requirements of Fed. R. Civ. P. 8(a)(2). Rule 8(a)(2) requires a “short and plain 

statement of the claim showing that the pleader is entitled to relief,” so that the defendant 

has “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 

(1957)). A complaint must also contain sufficient factual matter, which, if accepted as 

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

678 (2009). Facial plausibility exists if the pleader sets forth factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged. Id. Plausibility does not equal “probability,” but requires more than a sheer 

possibility that a defendant acted unlawfully. Id. “Where a complaint pleads facts that are 

‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between 

possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 550 U.S. at 

557). 

Although a complaint attacked for failure to state a claim does not need detailed 

factual allegations, the pleader’s obligation to provide the grounds for 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 (internal citations omitted). Rule 8(a)(2) 

“requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief,” as 

“[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could 

satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but 

also ‘grounds’ on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A. Wright & 

Arthur R. Miller, Federal Practice & Procedure § 1202, pp. 94, 95 (3d ed. 2004)). Thus, 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 3 of 21
- 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

Rule 8’s pleading standard demands more than “an unadorned, the-defendant-unlawfullyharmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 

 The Court must construe the facts alleged in the complaint in the light most 

favorable to the drafter and must accept all well-pleaded factual allegations as true, 

Shwarz, 234 F.3d at 435, Cafasso, 637 F.3d at 1053, but need not accept as true legal 

conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). 

III.

Defendants’ motion, (Doc. 15), asserts several grounds for dismissal, contending 

that: (1) Defendants cannot be held liable for mere negligence pursuant to A.R.S. § 12-

820.02 (A)(4); (2) Plaintiff failed to name or serve certain Defendants with a Notice of 

Claim (“Notice”), as required by A.R.S. § 12-821.01; and (3) the TAC fails to state a 

plausible claim against certain Defendants. The Court will address each of the arguments 

in turn.3

A. Plaintiff’s Negligence Claim

Count One of the TAC asserts a claim of “[g]ross [n]egligence and [n]egligence 

against [a]ll Defendants.” (Doc. 12 at 16). “A.R.S. § 12-820.02 (A)(4) requires a showing 

of ‘gross negligence’ in order for a public entity or employee to be liable for ‘an injury 

caused by a prisoner to any other prisoner.’” Murphy v. County of Yavapi, No. CV-04-

1861-PCT-DGC, 2006 U.S. Dist. LEXIS 63732, at *21-22 (D. Ariz. Aug. 23, 2006) 

(citation omitted). A.R.S. § 12-820 (5) defines “prisoner” as “a person incarcerated while 

awaiting sentence or while serving a sentence imposed by a court of law.” 

 

3 Defendants’ motion initially argued that Plaintiff’s 42 U.S.C. § 1983 claims 

should be dismissed due to Plaintiff’s lack of standing to bring a civil rights claim on 

behalf of Daughtry’s estate. (Doc. 15 at 11-12). However, Plaintiff has since been 

appointed the personal representative of Daughtry’s estate, and Defendants withdrew this

argument. (Doc. 38 at 2). 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 4 of 21
- 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

 Plaintiff does not contend that Defendant Bates’ and Daughtry’s status is anything 

other than “prisoner” as defined by the statute, and “do[es] not contest that, for purposes 

of [the] state law claims for relief, the appropriate standard of culpability is that of gross 

negligence.” (Doc. 34 at 10) Accordingly, to the extent the TAC alleges a claim of 

negligence against Defendants, it is hereby dismissed, with prejudice. 

B. Compliance with A.R.S. § 12-821.01 

 The motion next argues that Defendants Alvarez, Cormier, Garcia, Hansen, 

Hewitt, Hovanec, Huber, Johnson, Smith, and Wade were not named in, or served with a 

Notice, as is required by A.R.S. § 12-821.01. (Doc. 15 at 8-10). Defendants further assert 

that because the state law claims are barred for failure to comply with the notice of claim 

statute, all vicarious liability claims asserted against Defendants Arpaio and Maricopa 

County also fail.4

 (Doc. 38 at 8). 

The Court must first address whether it may entertain Defendants’ argument, 

which relies on documentary evidence outside of the TAC. On a motion to dismiss for 

failure to state a claim, the scope of review is generally “limited to the contents of the 

complaint.” Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006) (citing Warren v. Fox 

Family Worldwide, Inc., 328 F.3d 1136, 1141 n.5 (9th Cir. 2003)). However, the Court 

may also consider any evidence upon which the complaint “necessarily relies,” which is 

satisfied where: “(1) the complaint refers to the document; (2) the document is central to 

the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to 

the 12(b)(6) motion.” Id. (citing Branch v. Tunnell, 449, 453-54 (9th Cir. 1994), 

overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th 

Cir. 2002)). Having reviewed the TAC and the Notice attached to Defendants’ motion, 

(Doc. 15-1 at 2), the Court finds that the TAC necessarily relies on the Notice. 

First, the TAC explicitly refers to the document, as it alleges that “Plaintiff 

 

4

The Court will address this particular argument infra, in Section IV of the Order. 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 5 of 21
- 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

satisfied the provisions of A.R.S. § 12-821.01 by serving a notice of claim more than 60 

(sixty) days prior to the date of the filing of this complaint,” and that certain “Defendants 

denied the claim” while “[o]ther [D]efendants have not responded to the notice of claim.” 

(Doc. 12 at 4). Second, the Notice is central to Plaintiff’s claim. As discussed fully infra, 

Arizona law mandates that any person who has a claim against a public employee must 

file a Notice prior to filing suit. A.R.S. § 12-821.01 (A). Failure to strictly comply with 

the statute’s requirements results in preclusion of a plaintiff’s claims. Simon v. Maricopa 

Med. Ctr., 234 P.3d 623, 631 (Ariz. Ct. App. 2010). The importance the Arizona 

legislature has placed on compliance coupled with the harsh penalty for noncompliance 

make this procedural prerequisite central to Plaintiff’s civil rights claims against public 

employees. Finally, neither party questions the authenticity of the Notice attached to 

Defendants’ motion. Accordingly, the TAC necessarily relies upon the Notice, and may 

consider it. See Mitchell v. City of Flagstaff, CV 11-8140-PCT-FJM, 2011 U.S. Dist. 

LEXIS 133766, at *3 (D. Ariz. Nov. 18, 2011) (considering a Notice in adjudicating a 

Rule 12(b)(6) motion to dismiss). 

 As noted supra, prior to filing suit in state or federal court, Arizona law requires 

that “[p]ersons who have claims against a . . . public employee shall file claims with the 

person or persons authorized to accept service for the . . . public employee as set forth in 

the Arizona rules of civil procedure.” A.R.S. § 12-821.01 (A); Simon, 234 P.3d at 629. 

The Notice must be submitted “within one hundred eighty days after the cause of action 

accrues,” and must contain a statement of the facts that establish the basis for liability and 

an amount for which the claim can be settled. A.R.S. § 12-821.01 (A). This allows “the 

public entity to investigate and assess liability, permit the possibility of settlement prior 

to litigation, and to assist the public entity in financial planning and budgeting.” 

Martineau v. Maricopa County, 86 P.3d 912, 915-16 (Ariz. Ct. App. 2004). Accrual of a 

cause of action occurs “when the damaged party realizes he or she has been damaged and 

knows or reasonably should know the cause, source, act, instrumentality or condition that 

caused or contributed to the damage.” A.R.S. § 12-821.01 (B). 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 6 of 21
- 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

“[S]trict compliance with A.R.S. § 12-821.01 (A) is required.” Simon, 234 P.3d at 

629 (citing Falcon ex. rel. Sandoval v. Maricopa County, 144 P.3d 1254, 1256 (Ariz. 

2006)). “Substantial compliance” is insufficient, even if the defendants have “actual 

notice of the claim.” Id. (citation omitted). Should a plaintiff fail to file a Notice within 

the statutory time limit, her “claim is barred by statute.” Falcon, 144 P.3d at 1256 (citing 

Salerno v. Espinoza, 115 P.3d 626, 629 (Ariz. Ct. App. 2005)); see also Crum v. Superior 

Court, 922 P.2d 316, 317 (Ariz. Ct. App. 1996) (failure to include all claims and a 

settlement amount in the Notice resulted in preclusion).

Plaintiff’s TAC alleges claims against Maricopa County, Maricopa County Sheriff 

Joeseph M. Arpaio, M.D. Alvarez, and Deputy Sheriffs Cormier, Hewitt, Hovanec, 

Huber, Hansen, Johnson, Wade, Smith and Garcia. The TAC refers to the individually 

named Deputy Sheriffs and M.D. Alvarez as employees of either Maricopa County or 

Maricopa County Sheriff Joeseph Arpario. (Doc. 12 at 3-5). Arizona courts have 

repeatedly held that to comply with Arizona’s notice of claim statute, a prospective 

plaintiff must furnish a copy of the Notice on “both the employee individually and to his 

employer.” Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007) 

(citation omitted); Hendershott v. Babeu, 2015 Ariz. App. Unpub. LEXIS 372, at *11 

(Ariz. Ct. App. March 24, 2015) (citation omitted); Dana v. City of Yuma, 2011 Ariz. 

App. Unpub. LEXIS 1085, at *14 (Ariz. Ct. App. Aug. 16, 2011); Dimmig v. Pima 

County, 2009 Ariz. App. Unpub. LEXIS 1520, at *5 (Ariz. Ct. App. Oct. 27, 2009); 

Havasupai Tribe v. Ariz. Bd. of Regents, 204 P.3d 1063, 1080 (Ariz. Ct. App. 2008); 

Valenzuela v. City of Phoenix Police Dep’t, 2007 Ariz. App. Unpub. LEXIS 885, at *3 

(Ariz. Ct. App. Dec. 31, 2007); Crum, 922 P.2d at 317; see also Johnson v. Superior 

Court, 763 P.2d 1382, 1384 (Ariz. Ct. App. 1988) (recognizing that under the 

predecessor statute a claimant “must give notice of the claim to both the employee 

individually and to his employer”). 

 Having reviewed the record in its entirety, the Court finds no evidence that 

Plaintiff filed a Notice with the individually named employee Defendants in this lawsuit. 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 7 of 21
- 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

Even accepting Plaintiff’s assertion that she did not know of the individual Defendants’ 

conduct and identities until April of 2015, (Doc. 34 at 10), Plaintiff has never filed a 

Notice with any individual employee Defendant. Thus, even if the cause of action that 

forms the basis for this lawsuit did not accrue until April of 2015 under A.R.S. § 12-

821.01 (B), the 180 day time limit would have run at some point in October of 2015. 

Plaintiff asserts that she filed a timely Notice on January 5, 2015. (Doc. 34 at 8). There is 

no evidence in the record to support this claim. The only Notice present in the record—

and Plaintiff does not contend that more exist—is the January 5, 2015, Notice filed 

against “Maricopa County And/Or Maricopa County Sheriff.” (Doc. 15-1 at 2). The fact 

that the Notice fails to identify even a single individual responsible for the allegedly 

tortious or unconstitutional actions cripples any argument that a timely Notice was served 

on the aforementioned Defendants. 

Moreover, even if the Court were to consider this as a Notice served on the 

individual employee Defendants, the Arizona Court of Appeals has held that Plaintiff’s 

efforts are insufficient. In Harris, the plaintiff served a Notice on Cochise County, and 

the Notice referred to an individual defendant “as the statutory agent,” but failed to refer 

to her at all in the body of the Notice, and did not make any demand for money or 

settlement upon her. 160 P.3d at 230. Rather, the body of the Notice “repeatedly refer[ed] 

to ‘CHS officials,’ but d[id] not once name [the individual].” Id. Thus, “nothing exist[ed] 

in the notice that would have alerted the [individual] to the fact that a claim was being 

asserted against her,” and the “most she could expect to glean from this notice is that as 

[the entity’s] statutory agent, she must receive process for it and forward it to the 

principal.” Id. The instant action is nearly identical, except Plaintiff failed to name any of 

the individual employee Defendants as “statutory agents” in the Notice. It follows that 

even accepting Plaintiff’s efforts to date, they fail as a matter of law.5

 

5

 Plaintiff also makes no attempt to argue that the Notice was furnished on an 

“agent authorized by appointment or by law to receive service of process.” Ariz. R. Civ. 

P. 4.1(d); Shakur v. Schriro, 2011 Ariz. App. Unpub. LEXIS 839, at *9 (Ariz. Ct. App. 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 8 of 21
- 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

 In sum, the record establishes that Plaintiff failed to serve a Notice on the 

individually named employee Defendants. Plaintiff cannot rely on “excusable neglect,” as 

the doctrine no longer relieves a plaintiff of compliance. See Lee v. State, 182 P.3d 1169, 

1179 (Ariz. 2008) (noting that the Arizona legislature terminated this exception when it 

amended the notice of claim statute). “Any claim which is not filed within one hundred 

eighty days after the cause of action accrues is barred and no action may be maintained 

thereon.” Crum, 922 P.2d at 317 (citing A.R.S. § 12-821.01). Strict compliance is 

mandatory. Simon, 234 P.3d at 629 (citation omitted). Plaintiff has failed to comply, and 

her state law claims against Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt, 

Hovanec, Huber, Johnson, Smith and Wade are therefore barred. 

C. The Validity of Plaintiff’s Pleaded § 1983 Claims6

Turning to Plaintiff’s federal claims, Defendants assert that Plaintiff’s § 1983 

claims against Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade must be 

dismissed for failure to state a plausible claim of relief. (Doc. 15 at 4-8). “Jail officials 

have a duty to protect inmates from violence at the hands of other inmates.” Murphy, 

2006 U.S. Dist. LEXIS 63732, at *16 (citing Hearns v. Terhune, 413 F.3d 1036, 1040 

(9th Cir. 2005)). The failure of jailers to protect the inmate population from the attacks by 

other inmates may result in a violation of the victim’s constitutional rights where “(1) the 

deprivation alleged is ‘objectively, sufficiently serious’ and (2) the prison officials had a 

 

June 21, 2011). To qualify as an agent to accept service, an attorney must “appear . . . 

authorized, either expressly or impliedly, to receive service of process for his client.” 

Kline v. Kline, 212 P.3d 902, 908 (Ariz. Ct. App. 2009) (citation omitted). But even if 

Plaintiff had raised this argument, it would fail in light of Harris, 160 P.3d at 230.

6

 At oral argument held on July 20, 2016, Plaintiff conceded that the Court would 

be “within its rights” to find that the TAC failed to allege a facially plausible claim 

against Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade, and asked that 

they be dismissed without prejudice from the matter. Even accepting Plaintiff’s 

concession of the issue, in the interest of preserving a full and clear record of the entirety 

of this matter, the Court has analyzed the TAC’s claims against the aforementioned 

Defendants under Rule 8. 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 9 of 21
- 10 - 

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

‘sufficiently culpable state of mind,’ acting with deliberate indifference.” Hearns, 413 

F.3d at 1040 (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “Deliberate 

indifference is a high legal standard,” higher than negligence, Hallett v. Morgan, 296 

F.3d 732, 744 (9th Cir. 2004) (citation omitted), and even gross negligence. Wood v. 

Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). But it is “satisfied by something less 

than acts or omissions for the very purpose of causing harm or with knowledge that harm 

will result.’” Hearns, 413 F.3d at 1040 (quoting Farmer, 511 U.S. at 835) (alterations 

omitted). 

 Plaintiff’s opposition brief to the pending motion includes a number of factual 

assertions not contained in the TAC. (Doc. 34 at 2-4, 5). The Court may not, and will not 

consider them in its analysis. Frenzel v. Aliphcom, 76 F. Supp. 3d 999, 1009 (N.D. Cal. 

2014) (citations omitted) (it is “axiomatic that the complaint may not be amended by the 

briefs in opposition to a motion to dismiss”). The Court’s review of the facts will be 

restricted to those pleaded in the TAC. 

 1. Defendant Garcia

 The TAC names Defendant Deputy Sheriff Sergeant Garcia as an “employee[] of 

the Maricopa County Sheriff’s Office, (Doc. 1 at 3 ¶ 7), and alleges that he was “on duty 

on July 9, 2014[,] at the 4th Avenue Jail.” (Id. at 5 ¶ 15). Beyond these two instances, the 

TAC is bereft of any factual allegations relating to Defendant Garcia. Plaintiff simply 

asserts that “[t]he wrongful conduct of [D]efendants, and each of them, as alleged herein 

under color of State law, constitute violations of the United States Constitution . . . .” (Id. 

at 20 ¶ 107). Plaintiff’s theory of recovery centers on Defendants’ failure to protect 

Daughtry by placing Bates in the same cell as Daughtry.7

 None of the pleaded facts in the 

 

7

 The TAC makes no claim that Garcia was in a position to set any kind of policy, 

procedure, or process. It also makes no claim that Garcia could, and failed to undertake 

some act with respect to providing appropriate medical and psychiatric care to Daughtry 

which would have precluded Daughtry from being placed in a jail cell with Defendant 

Bates. Thus, the Court focuses on Garcia’s role in Bates being placed in Daughtry’s cell 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 10 of 21
- 11 - 

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

TAC place Defendant Garcia anywhere near this action, much less allege that Garcia 

made the decision to place Bates in Daughtry’s cell, that he participated in placing Bates 

in Daughtry’s cell, or that he knew Bates had been placed in the cell and failed to act. In 

sum, taking all pleaded facts in the TAC as true, and reading them in the light most 

favorable to Plaintiff, the TAC fails to allege a plausible claim of relief against Defendant 

Garcia. 

 Plaintiff’s brief opposes the motion on two grounds.8 Plaintiff first argues that 

“under well-established Ninth Circuit case law, each individual that participates in a 

group-based violation of a constitutional right is responsible for the harm caused by the 

violation.” (Doc. 34 at 6). But “[a]n officer’s liability under section 1983 is predicated on 

his ‘integral participation’ in the alleged violation” which requires “some fundamental 

involvement in the conduct that allegedly caused the violation.” Blankenhorn v. City of 

Orange, 485 F.3d 463, 481 n.12 (9th Cir. 2007) (quoting Chuman v. Wright, 76 F.3d 292, 

294-95 (9th Cir. 1996)). Here, the pleaded facts fail to even suggest that Defendant 

Garcia was in the vicinity of the alleged violations, and fail to establish that Defendant 

Garcia was an integral participant in the actions that led to Daughtry’s death. 

 Plaintiff’s brief next argues that she is at an “informational disadvantage,” and that 

dismissing Defendant Garcia at this stage, without discovery, “would be premature in 

light of . . . longstanding” doctrine. (Doc. 34 at 6). Plaintiff relies on Alston v. Parker,

363 F.3d 229, 233 n.6 (3d Cir. 2004), in part,9

 a case in which the Third Circuit discussed 

 

on July 9, 2014. 

8

 Plaintiff opposes Defendants’ motion in general on these two grounds. The Court 

has specifically addressed them in response to Defendants’ assertion that the TAC fails to 

state a plausible claim against Defendant Garcia. With respect to the remaining 

Defendants, the Court does not specifically address Plaintiff’s “group-based violation” 

and “informational disadvantage” arguments. The Court does, however, note that its 

analysis pertaining to Defendant Garcia applies to each Defendant that follows. In short, 

Plaintiff’s arguments are not persuasive. 

9

Plaintiff’s argument leads with citation to Colburn v. Upper Darby Township, 

838 F.2d 663, 667 (3d Cir. 1988). In Colburn, the Third Circuit, discussed the efforts of 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 11 of 21
- 12 - 

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

the no longer viable “no set of facts” pleading standard, noting that a plaintiff “need not 

plead facts” but “only make out a claim upon which relief can be granted.” Id. The Court 

went on to recognize that in certain cases, pro se prisoners pursuing civil rights actions 

may need discovery to determine “identities and roles of relevant actors” as “owing to 

their incarceration or institutionalization, [they are] unable to conduct pre-trial 

investigation to fill in the gaps.” Id.

 The Court finds that no informational disadvantage exists that is substantial 

enough to justify leniency with respect to Rule 8’s pleading standards. Unlike the 

plaintiff in Alston, Plaintiff here has been represented by counsel throughout this matter. 

Moreover, Plaintiff’s own opposition asserts that she “could not have known of the 

individual Defendants’ conduct until April of 215, when Defendants finally released the 

investigation” they conducted to Plaintiff, (Doc. 34 at 10), nearly eight months prior to 

filing the TAC. Finally, the court in Alston made it clear that its focus was to address the 

institutional barriers that exist for pro se prisoners who do not have access to counsel and 

due to their own incarceration, cannot undertake “a pre-trial investigation to fill in the 

gaps.” 363 F.3d at 233 n.6. But even assuming Plaintiff is at a sufficient “informational 

disadvantage,” this Court has found that such plaintiffs are entitled to “some benefit of 

the doubt to go along with the specific facts [the complaint] has pled.” Hamblen v. 

Diamante Crossroads Plaza, LLC, No. CV 08-0561-PHX-JAT, 2009 U.S. Dist. LEXIS 

 

an administratrix to plead sufficient facts to survive a Rule 12(b)(6) motion to dismiss. 

The court found that “[o]ne of the circumstances to be considered is whether the plaintiff 

is in a position to know or acquire the relevant factual details,” taking special 

consideration of the fact that “the results of [the] defendants’ investigations into the 

incident [we]re apparently not a matter of public record.” Id. at 667. Here, Plaintiff has 

not alleged or asserted that Defendants’ investigation was not released to her. And 

previous filings by Plaintiff have acknowledged that counsel was given the results of 

Defendants’ investigation in April of 2015. (Doc. 34 at 9). Further, elements of the TAC 

are clearly drawn from Defendants’ efforts to investigate the actions that led to 

Daughtry’s death. Thus, even taking into consideration Plaintiff’s “position to know or 

acquire the relevant factual details,” the Court finds that she is not at such an 

informational disadvantage so as to excuse the failure to allege a plausible claim for relief 

against Defendant Garcia.

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 12 of 21
- 13 - 

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

26191, at *6 (D. Ariz. March 30, 2009) (quoting United Technologies Corp. v. Mazer, 

556 F.3d 1260, 1273 (11th Cir. 2009)). Giving Plaintiff “some benefit of the doubt,” the 

TAC pleads insufficient facts to state a plausible claim of relief with respect to Defendant 

Garcia, who appears nowhere in the pleaded facts, save for being named as an employee 

who was at the 4th Avenue Jail on July 9, 2014. Plaintiff’s § 1983 claim against 

Defendant Garcia must be dismissed. 

 2. Defendant Smith

 The TAC alleges that Defendant Lt. B. Smith was an employee of the Maricopa 

County Sheriff’s Office and was on duty at the 4th Avenue Jail on July 9, 2014. (Doc. 12 

at 3 ¶ 7, 5 ¶ 15). The TAC further alleges that at approximately 2200 hours, after 

Defendants Cormier and Wade had discovered an unresponsive Daughtry in his cell, 

Defendant Smith “ordered [Defendant] Hovanec to open the cell door of” Daughtry’s 

cell. (Id. at 12 ¶ 69). This was after Defendant Bates had physically assaulted Daughtry, 

after Defendants Wade and Cormier “made a radio call for a man down” and after 

“[m]ultiple [o]fficers responded” to Daughtry’s cell. (Id. at 12 ¶ 67-69). Defendant Smith 

is not mentioned again throughout the TAC.

 Having reviewed the TAC, it is evident that no pleaded facts allege wrongdoing 

with respect to Bates being placed in Daughtry’s cell on the part of Defendant Smith 

specifically. The only action he is expressly alleged of undertaking is ordering that 

Defendant Hovanec open the door to Daughtry’s cell to render aid. The TAC does not 

plead that Defendant Smith took part in placing Bates in Daughtry’s cell, that he directed 

any other officer to place Bates in Daughtry’s cell,10 or that he was aware that Bates had 

been placed in the cell and failed to act. 

 

10 The TAC alleges that Defendants Huber and Hansen transported Bates from the 

holding cell to Daughtry’s at the direction of “Towers security,” (Doc. 12 at 10 ¶ 48), but 

there are no supporting facts to infer that Defendant Smith was either part of “Towers 

security,” or ordered “Towers security” to call for Bates to be moved.

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 13 of 21
- 14 - 

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

 Absent any pleaded facts suggesting that Defendant Smith was directly involved 

in the series of actions that led to Daughtry’s death, it is possible—although the TAC 

certainly does not clearly allege—that Defendant Smith’s rank as Lieutenant made him 

the highest ranking officer on-site on July 9, 2014, and that his status as the highest 

ranking officer makes him culpable for the series of actions that resulted in Daughtry’s 

death. Having parsed through the language of Count Two, the Court has discerned 

several specific allegations: that Defendants were deliberately indifferent toward a 

serious safety hazard threatening Plaintiff where they “transferred a dangerous and 

psychologically unstable inmate . . . into a single cell unit with Daughtry who was also 

psychologically unstable,” (Doc. 12 at 20 ¶ 107), that Defendants failed to “provide 

Daughtry with proper, reasonable, basic, and necessary psychiatric and medical 

treatment,” (id. at 21 ¶ 108), and that Defendants “failed to provide a safe and healthy 

environment while Daughtry was detained at [the] 4th Avenue Jail.” (Id. at 21 ¶ 111). 

 But even taking all pleaded facts as true, and reading them in the light most 

favorable to Plaintiff, the TAC fails to plead sufficient facts to plausibly establish that 

Defendant Smith was responsible for, had some active role in, or failed to redress any of 

the conclusory allegations set forth above. It is not sufficient under Rule 8 to generally 

plead, for example, that it was an unsafe and unhealthy environment that lacked “basic, 

and necessary psychiatric and medical treatment,” and then fail to set forth any specific 

factual allegations to underpin such claims, all while failing to tie any of the conclusory 

claims to the individual Defendant in even a general sense. More is required to plead a 

facially plausible claim that Defendant Smith was deliberately indifferent towards likely 

inmate violence that deprived Daughtry of a sufficiently serious constitutional right. 

 Finally, Count Two of the TAC alleges that certain Defendants are liable under § 

1983 for setting and implementing unconstitutional protocols and policies, but these are 

specifically limited to allegations against Defendant Arpaio, (Doc. 12 at 19 ¶ 103), 

Defendant Maricopa County, (id. at 18 ¶ 101), and Defendant Alvarez. (Id. at 20 ¶ 104-

105). Count Two does go on to generally allege that Defendants “knowingly and with 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 14 of 21
- 15 - 

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

deliberate indifference, permitted the implementation of inappropriate de facto policies” 

that are constitutionally infirm. (Doc. 12 at 18 ¶ 102). But the TAC fails to assert—even 

in a cursory manner—which Defendants are responsible for implementing which of the 

nine allegedly unconstitutional “de facto policies” Plaintiff has set forth. Even assuming 

that Defendant Smith, possibly the highest ranking on-site officer on July 9, 2014, was 

responsible for setting “de facto policies,” the nine alleged policies are simply recitations 

of legal conclusions. For example, the TAC pleads that Defendants engaged in 

“unconstitutionally cruel and unusual confinement” and that Defendants accepted “the 

use of unconstitutionally cruel and unusual confinement” and Defendants “fail[ed] to 

discipline or terminate jail personnel known to engage in the use of cruel and unusual 

confinement,” and that Defendants “fail[ed] to adequately train and supervise jail 

personnel.” (Doc. 12 at 19 ¶ 102). The TAC lists several additional alleged policies, but 

they suffer from the same deficiencies. They are conclusions that lack any underlying 

factual support. 

 The TAC fails to allege what constituted cruel and unusual confinement, it fails to 

allege which personnel engaged in the use of cruel and unusual confinement, and it fails 

to allege what actions by what Defendants form the basis of the failure to adequately train 

and supervise claim. The only two specific factual assertions that can form the basis of 

“de facto policies” are the decisions to place Defendant Bates in the same cell as 

Daughtry, and, perhaps, the confinement of Daughtry in a standard cell when he required 

specific psychiatric care and treatment. The TAC fails to plausibly allege that Defendant 

Smith had any role in either. In sum, the alleged policies—which, in theory, could 

possibly be implemented by Defendant Smith due to his possible position within the 4th 

Avenue Jail chain of command—amount to legal conclusions and do not allow Court to 

draw the inference that Defendant Smith enacted these unconstitutional “de facto 

policies.”

 Taking as true all pleaded facts in the TAC and viewing them in the light most 

favorable to Plaintiff, it fails to allege a plausible § 1983 claim against Defendant Smith. 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 15 of 21
- 16 - 

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

 3. Defendants Hewitt and Johnson

 The TAC alleges that Defendants Hewitt and Johnson were employees of the 

Maricopa County Sheriff’s Office and were on duty at the 4th Avenue Jail on July 9, 

2014. (Doc. 12 at 3 ¶ 7, 4 ¶ 15). The TAC further alleges that Defendants Hewitt and 

Johnson were the officers who encountered Defendant Bates in the “Sally Port,” a 

restricted area in the 4th Avenue Jail. (Doc. 12 at 9 ¶ 42). Defendants Hewitt and Johnson 

told Bates that he was not allowed to be in the restricted area, and that he needed to return 

to his cell. Bates did not comply, and after repeating their command to return to his cell, 

Defendants Hewitt and Johnson handcuffed Bates and placed him in a holding tank until 

“he could be moved to a cell.” (Id. at 9-10 ¶ 42-46). Defendants Huber and Hansen, at the 

direction of “Towers security,” then transferred Bates from the holding tank to “the cell 

that Daughtry was also housed in.” (Id. at 10 ¶ 49). After Defendant Bates had been 

transferred to Daughtry’s cell, Defendants Hewitt and Johnson “brought Bates’ personal 

belongings to his cell,” which Bates now shared with Daughtry. (Id. at 10 ¶ 50). These

allegations comprise the entirety of the claims against Defendants Hewitt and Johnson. 

In light of Plaintiff’s concession that the aforementioned factual allegations are 

insufficient to make out a facially plausible claim of relief against Defendants Hewitt and 

Johnson, the Court will grant Defendants’ motion on this issue. 

 4. Defendants Cormier and Wade

Defendants Cormier and Wade were employees of the Maricopa County Sheriff’s 

Office that they were on duty on July 9, 2014, and were assigned to the housing unit 

where Daughtry was held. (Doc. 12 at 3 ¶ 7, 4 ¶ 15). The TAC goes on to allege that 

exactly when Defendant Bates was placed into Daughtry’s cell, Cormier and Wade were 

“assigned to the housing unit” and “were passing out canteen.” (Id. at 11 ¶ 56, 63). At 

approximately 2200 hours on July 9, 2014, Defendant Hovanec instructed Defendants 

“Wade and Cormier to stop canteen and start general headcount.” (Id. at ¶ 63). As 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 16 of 21
- 17 - 

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

Defendants Cormier and Wade were “conducting a headcount in [pod] 2B,” they walked 

by the cell that Daughtry was in and “saw [D]efendant Bates standing over Daughtry who 

was unconscious and unresponsive and lying face down in a puddle of blood.” (Id. at 12 ¶ 

67). Defendant Cormier “made a radio call for a man down and requested for an AED 

(Automated External Defibrillator).” (Id.) Defendant Wade also “made a radio call to 

security control for a ‘man down.’” (Id. at 11 ¶ 66). Defendants are not mentioned 

thereafter in the TAC. 

 Having reviewed the TAC, for the reasons state above, the Court finds that 

Plaintiff has pleaded insufficient factual allegations to allege a plausible claim against 

Defendants Cormier and Wade. No pleaded facts suggest that Defendants Cormier and 

Wade had any active role in placing Defendant Bates in Daughtry’s cell. Nor does the 

TAC suggest that the Defendants were even aware that Bates had been placed in 

Daughtry’s cell until they discovered Daughtry unconscious on the floor of his cell when 

they were “conducting a headcount.” And the TAC fails to allege that Defendants 

Cormier and Wade had some role in directing, overseeing, or ordering Bates’ transfer to 

Daughtry’s cell. Finally, the TAC fails to allege sufficient facts to plausibly assert that 

Defendants Cormier and Wade had some role in setting “de facto policies” or procedures 

that led to Daughtry’s death. The pleaded facts, taken as true, establish that Defendants 

Cormier and Wade were on duty the night of Daughtry’s death, had no role in bringing 

about his death, and took action upon discovering Daughtry to alert on-site officers that 

there was a “man down” and that immediate medical attention was necessary. (Doc. 12 at 

11-12 ¶66-67). In sum, the TAC fails to plausibly allege that Defendants Cormier and 

Wade were deliberately indifferent towards the deprivation of Plaintiff’s sufficiently 

serious rights at the hands of another inmate, or that Defendants Cormier and Wade failed 

in their obligation to keep Daughtry safe from the likely attack of another inmate. 

Farmer, 511 U.S. at 828. Accordingly, the § 1983 claims against Defendants Cormier 

and Wade must be dismissed. 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 17 of 21
- 18 - 

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

IV.

In light of the Court’s ruling on Plaintiff’s Rule 12(b)(6) motion, the Court must 

address which of the TAC’s claims remain. As discussed supra, Defendant Bates is 

dismissed for failure to serve, Plaintiff’s negligence claim must be dismissed, and all of 

Plaintiff’s state law claims against Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt, 

Hovanec, Huber, Johnson, Smith, and Wade must be dismissed for failure to comply with 

A.R.S. § 12-821.01. 

 It is clear that any and all state law claims against the aforementioned individual 

employee Defendants are barred. See Harris, 160 P.3d at 230 (quoting Salerno, 115 P.3d 

at 628) (emphasis in original) (noting that failure to comply “‘bars any claim’ against the 

entity or employee”). Defendants assert that Plaintiff’s failure to comply with Arizona’s 

notice of claim statute also bars any and all claims against Defendants Arpaio and 

Maricopa County under a theory of respondeat superior/vicarious liability. (Doc. 38 at 7-

8). The Court agrees. 

“Under Arizona law, ‘a dismissal with prejudice is an adjudication on the merits of 

the case.’” Nixon v. Mohave County, No. 3:14-CV-8031-HRH, 2014 U.S. Dist. LEXIS 

116009, at *6 (D. Ariz. Aug. 20, 2014) (quoting De Graff v. Smith, 157 P.2d 342, 345 

(Ariz. 1945)); see also Orlando v. City of Mesa, 2009 Ariz. App. Unpub. LEXIS 143, at 

*3 (Ariz. Ct. App. March 5, 2009) (“Arizona has long recognized that a dismissal with 

prejudice of a plaintiff’s claims against an employee constitutes an adjudication on the 

merits.”). Failure to comply with the notice of claim statute results in dismissal of any 

and all claims against that entity or individual, with prejudice. See A. Miner Contr., Inc. 

v. City of Flagstaff, 2015 Ariz. App. Unpub. LEXIS 1200, at *1-6 (Ariz. Ct. App. Oct. 1, 

2015) (affirming the superior court’s dismissal of a plaintiff’s “complaint with prejudice 

for failure to comply with Arizona’s notice of claim statute”); see also Merrick v. Ryan, 

2015 Ariz. App. Unpub. LEXIS 1173, at *1 (Ariz. Ct. App. Sept. 24, 2015) (same); Best 

v. State, 2014 Ariz. App. Unpub. LEXIS 784, at *1 (Ariz. Ct. App. June 17, 2014) 

(same); Falcon, 144 P.3d at 1256 (citing Salerno, 115 P.3d at 629) (“If a notice of claim 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 18 of 21
- 19 - 

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

is not properly filed within the statutory time limit, a plaintiff’s claim is barred by 

statute.”).

 Where claims against an individual employee—or employees—are “dismissed 

with prejudice, then the employer can never be found vicariously liable.” Nixon, 2014 

U.S. Dist. LEXIS 116009, at *6 (citation omitted); see also Law v. Verde Valley Med. 

Ctr., 170 P.3d 701, 705 (Ariz. Ct. App. 2007) (noting that when a judgment on the merits, 

including a dismissal with prejudice, is entered in favor of an employee, “there is no fault 

to impute and the party potentially vicariously liable” is not responsible).

Here, Plaintiff’s state law claims against the individual employee Defendants have 

been dismissed, with prejudice, due to Plaintiff’s failure to comply with the notice of 

claim statute. Under Arizona law, Defendants Maricopa County and Arpaio can never be 

held vicariously liable for their employees’ official conduct. See Orlando, 2009 Ariz. 

App. Unpub. LEXIS 143, at *3 (if the claims against the employee are dismissed with 

prejudice, then “an action against the employer based solely upon the doctrine of 

vicarious liability” is barred). To allow Plaintiff to “continue to assert claims for 

vicarious liability against the County” and Defendant Arpaio, even in light of the 

dismissal with prejudice of the individual Defendants, then Plaintiff’s “failure to comply 

with the Notice statute as to [the individual Defendants] would be excused, which would 

not be consistent with Arizona law that treats the Notice statute as ‘mandatory.’” Nixon, 

2014 U.S. LEXIS 116009, at *6-7 (quoting Salerno, 115 P.3d at 628). As Plaintiff cannot 

cure the problem with her state law claims against Defendants Maricopa County and 

Arpaio premised on a theory of respondeat superior/vicarious liability, they must be 

dismissed as well.11

 

Likewise, a 42 U.S.C. § 1983 claim cannot serve as the basis for a respondeat 

 

11 The Court is not persuaded by Plaintiff’s argument that Johnson, 763 P.2d at 

1385, mandates that the respondeat superior claims be allowed to proceed. Johnson 

analyzed the predecessor statute to A.R.S. § 821.01, and held that the notice of claim 

statute required that a prospective plaintiff furnish a Notice on both the employer and the 

employee. Id. at 1384. 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 19 of 21
- 20 - 

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

superior/vicarious liability claim, and must be dismissed as well. Strickler v. Arpaio, No. 

CV-12-1344-PHX-GMS, 2012 U.S. Dist. LEXIS 117727, at *14 (D. Ariz. Aug. 21, 

2012); Roundtree v. Adams, 2005 U.S. Dist. LEXIS 40517, at *23 (E.D. Cal. Dec. 1, 

2005) (citing Polk County v. Dodson, 454 U.S. 312, 325 (1981)). 

 Finally, the TAC’s § 1983 claims alleged against Defendants Cormier, Garcia, 

Hewitt, Johnson, Smith, and Wade must be dismissed for failure to allege a facially 

plausible claim of relief. 

 

V. 

Accordingly,

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

/ 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 20 of 21
- 21 - 

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

IT IS ORDERED that Defendants’ Motion to Dismiss, (Doc 15), is GRANTED. 

IT IS FURTHER ORDERED that Count One’s claim for negligence is 

DISMISSED. 

IT IS FURTHER ORDERED that Defendant Ryan Bates is dismissed from this 

matter for failure to execute service of process under Fed. R. Civ. P. 4(m). 

IT IS FURTHER ORDERED that any and all state law claims against 

Defendants Alvarez, Cormier, Garcia, Hansen, Hewitt, Hovanec, Huber, Johnson, Smith, 

and Wade are DISMISSED. 

IT IS FURTHER ORDERED that any claims against Defendants Arpaio and 

Maricopa County based on a theory of respondeat superior/vicarious liability are 

DISMISSED. 

IT IS FURTHER ORDERED that Count Two, with respect to Defendants 

Cormier, Garcia, Hewitt, Johnson, Smith, and Wade is DISMISSED. 

IT IS FURTHER ORDERED that with no viable claims against them remaining 

in the TAC, Defendants Cormier, Garcia, Hewitt, Johnson, Smith, and Wade are 

DISMISSED from this matter. 

Dated this 25th day of July, 2016.

 

Case 2:15-cv-01845-JAT Document 76 Filed 07/25/16 Page 21 of 21