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WO

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’ Motion for Summary Judgment (Doc. 

209). The Court now rules on the motion. 

I. BACKGROUND 

 On July 31, 2017, Defendants filed the pending Motion for Summary Judgment 

(Doc. 209). Plaintiffs filed a timely Response on September 20, 2017 (Doc. 230). 

Defendants then filed a Reply on November 2, 2017 (Doc. 236). 

 Following this Court’s Order on Defendants’ Motion to Dismiss (Doc. 76), 

Plaintiffs maintain the following two causes of action: (1) a gross negligence claim 

against Defendants Penzone1

 and Maricopa County for failure to train, supervise, and 

 

1

 On February 10, 2017, Defendants filed a Notice of Substitution (Doc. 148) to 

substitute Sheriff Paul Penzone for former Sheriff Joseph Arpaio. Plaintiffs did not object to Defendants’ Notice of Substitution. Accordingly, further proceedings are in Sheriff Penzone’s name instead of former Sheriff Arpaio’s name. Furthermore, Plaintiffs never specify in their Response (Doc. 230) whether they maintain claims against Arpaio and Medical Director for Maricopa Correctional Health Services Jeffrey Alvarez in their personal or official capacities. Because Plaintiffs fail to make a distinction and do not 

allege any specific acts by either individual, the Court construes all claims brought against Arpaio (now Penzone) and Alvarez to be brought against them in their official 
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hire; and (2) Fourteenth Amendment failure-to-protect and familial-association claims 

under 42 U.S.C. § 1983 against Defendants Penzone, Alvarez, Maricopa County, 

Hovanec, Huber, and Hansen. 

A. Facts 

 Plaintiff Shari Ferreira brought this action on behalf of decedent Zachary 

Daughtry in her capacity as personal representative of the estate (hereafter “Plaintiffs”) 

against Maricopa County and several public employees (collectively “Defendants”). 

(Doc. 12 at 2). The Court went through the background facts regarding the decedent’s 

injuries in its Order on Defendants’ Motion to Dismiss, so the Court will not repeat them 

all here (See Doc. 76 at 2). Facts most relevant to this Order are discussed below and the 

Court will discuss other relevant facts as necessary: 

Daughtry was initially arrested on December 12, 2013, and 

booked into the 4th Avenue Jail complex. ([Doc. 12] 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 [] Ryan Bates 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 

 

capacities only. (See, e.g., Doc. 12 at 19 (in describing the allegations against Arpaio in the operative complaint, Plaintiffs note that “Arpaio’s actions and inactions are actions 

and inactions on behalf of the County,” which seems to indicate that Plaintiffs are 

referring to Arpaio only in his official capacity)). Finally, no party has moved to update the case caption following the Notice of Substitution, so it will remain unchanged at this 

time. 
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injuries. (Id. at 15 ¶ 76). 

(Doc. 76 at 2). 

 Having set forth the pertinent factual and procedural background, the Court turns 

to Defendants’ Motion for Summary Judgment. 

II. SUMMARY JUDGEMENT STANDARD 

 Summary judgment is appropriate when “there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). “A party asserting that a fact cannot be or is genuinely disputed must support that 

assertion by . . . citing to particular parts of materials in the record, including depositions, 

documents, electronically stored information, affidavits, or declarations, stipulations . . . 

admissions, interrogatory answers, or other materials,” or by “showing that materials 

cited do not establish the absence or presence of a genuine dispute, or that an adverse 

party cannot produce admissible evidence to support the fact.” Id. 56(c)(1)(A), (B). Thus, 

summary judgment is mandated “against a party who fails to make a showing sufficient 

to establish the existence of an element essential to that party’s case, and on which that 

party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986). 

 Initially, the movant bears the burden of demonstrating to the Court the basis for 

the motion and the elements of the cause of action upon which the non-movant will be 

unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to 

the non-movant to establish the existence of material fact. Id. A material fact is any 

factual issue that may affect the outcome of the case under the governing substantive law. 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The non-movant “must do 

more than simply show that there is some metaphysical doubt as to the material facts” by 

“com[ing] forward with ‘specific facts showing that there is a genuine issue for trial.’ ” 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (quoting 

Fed. R. Civ. P. 56(e)). A dispute about a fact is “genuine” if the evidence is such that a 

reasonable jury could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 
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U.S. at 248 (1986). The non-movant’s bare assertions, standing alone, are insufficient to 

create a material issue of fact and defeat a motion for summary judgment. Id. at 247–48. 

However, in the summary judgment context, the Court construes all disputed facts in the 

light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 

(9th Cir. 2004). 

 At the summary judgment stage, the Court’s role is to determine whether there is a 

genuine issue available for trial. There is no issue for trial unless there is sufficient 

evidence in favor of the non-moving party for a jury to return a verdict for the nonmoving party. Liberty Lobby, Inc., 477 U.S. at 249-50. “If the evidence is merely 

colorable, or is not significantly probative, summary judgment may be granted.” Id. 

(citations omitted). 

 A. Admissibility of Evidence at the Summary Judgment Stage

 The Ninth Circuit applies a double standard to the admissibility requirement for 

evidence at the summary judgment stage. See 10B Charles Alan Wright, Arthur R. Miller 

& Mary Kay Kane, Federal Practice & Procedure § 2738 (3d ed. 1998). With respect to 

the movant’s evidence offered in support of a motion for summary judgment, the Ninth 

Circuit requires that it be admissible both in form and in content. See Canada v. Blains 

Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); Hamilton v. Keystone Tankship 

Corp., 539 F.2d 684, 686 (9th Cir. 1976). With respect to non-movant’s evidence offered 

in opposition to a motion for summary judgment, the Ninth Circuit has stated that the 

proper inquiry is not the admissibility of the evidence’s form, but rather whether 

the contents of the evidence are admissible. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th 

Cir. 2003); see also Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited 

to support or dispute a fact cannot be presented in a form that would be admissible in 

evidence.”); Celotex Corp., 477 U.S. at 324 (“We do not mean that the nonmoving 

party must produce evidence in a form that would be admissible at trial in order to avoid 

summary judgment.” (emphasis added)). 

 Accordingly, the Ninth Circuit has held that a non-movant’s hearsay evidence may 
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establish a genuine issue of material fact precluding a grant of summary 

judgment. See Fraser, 342 F.3d at 1036-37; Carmen v. S.F. Unified Sch. Dist., 237 F.3d 

1026, 1028-29 (9th Cir. 2001); Beyene v. Coleman Sec. Servs., Inc., 854 F.2d 1179, 1182 

(9th Cir. 1988). Thus, “[m]aterial in a form not admissible in evidence may be used 

to avoid, but not to obtain summary judgment, except where an opponent bearing a 

burden of proof has failed to satisfy it when challenged after completion of relevant 

discovery.” Tetra Techs., Inc. v. Harter, 823 F. Supp. 1116, 1120 (S.D.N.Y. 1993) 

(emphasis in original). Similarly, evidence containing hearsay statements is admissible 

only if offered in opposition to the motion. “Because [v]erdicts cannot rest on 

inadmissible evidence and a grant of summary judgment is a determination on the merits 

of the case, it follows that the moving party’s affidavits must be free from 

hearsay.” Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1121 (E.D. Cal. 

2006) (internal quotation marks omitted) (emphasis in original). 

 1. Admissibility of Plaintiffs’ Exhibits 

 Here, Defendants argue that they are entitled to summary judgment because 

Plaintiffs’ Response (Doc. 230) “is supported by inadmissible evidence,” namely the 

report of jail operations expert Jeffrey Eiser. (Doc. 236 at 2). Plaintiffs, in part, rely on 

Expert Eiser’s report, which is signed but unsworn, to oppose Defendants’ motion on all 

remaining claims. (See Doc. 229-7 at 33). Plaintiffs point out that courts in the Ninth 

Circuit have routinely held that “to be competent summary judgment evidence, an expert 

report must be sworn to or otherwise verified, usually by a deposition or affidavit,” 

regardless of whether an expert report is being offered to support or oppose summary 

judgment. Reed v. NBTY, Inc., No. EDCV 13-0142 JGB (OPx), 2014 WL 12284044, at 

*4 (C.D. Cal. Nov. 18, 2014). However, “courts have generally held that this problem 

may be remedied after it is identified.” King Tuna, Inc. v. Anova Food, Inc., CV 07-7451 

ODW (JWJx), 2009 WL 650732, at *1 (C.D. Cal. Mar. 10, 2009) (citing Maytag Corp. v. 

Electrolux Home Prods., Inc., 448 F.Supp.2d 1034, 1043 (N.D. Iowa 2006) (“while an 

unsworn expert report, standing alone, does not constitute admissible evidence that can 
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be considered at the summary judgment stage of the proceedings, . . . an unsworn expert 

report may be considered at summary judgment where the opinions therein are otherwise 

adopted or reaffirmed”)).2

 “Although [Defendants] are correct that [Plaintiffs’] report should have been 

signed under penalty of perjury, as the party opposing summary judgment, [Plaintiffs’] 

papers are held to a less exacting standard than those of [the moving party].” 

Finmeccanica S.p.A. v. Gen. Motors Corp., No. CV 07-07537 SJO (PJWx), 2008 WL 

11336141, at *9 (C.D. Cal. Dec. 17, 2008) (citing Competitive Techs., Inc. v. Fujitsu Ltd., 

333 F. Supp. 2d 858, 863 (N. D. Cal. 2004) (admitting signed but unsworn expert reports 

that otherwise met the requirements of Federal Rule of Civil Procedure (“Rule”) 56(e), as 

prescribed by Rule 56(c)(4))). “Further, ‘the existence of [the report], although not 

presently in evidentiary form, should alert the summary judgment court to the availability 

at the trial of the facts contained in [them].’ ” Id. (quoting Competitive Techs., Inc., 333 

F. Supp. 2d. at 864). Defendants raise no questions as to the authenticity of Expert Eiser’s 

report or predicted testimony in this matter. 

 The Court has carefully reviewed Expert Eiser’s report and finds that it meets the 

requirements of Rule 56(e), namely that it is “made on personal knowledge, set out facts 

that would be admissible in evidence, and show that the affiant or declarant is competent 

to testify on the matters stated” therein. Fed. R. Civ. P. 56(c)(4). Expert Eiser’s report 

does state that his opinions therein are based on his “training, education and personal 

knowledge,” and makes clear his intention to testify to his opinions at trial. Under these 

circumstances, the Court declines to exclude the Eiser report for the purposes of 

considering Defendants’ summary judgment motion. See Sch. Dist. No. 1J, Multnomah 

Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1261 (9th Cir. 1993) (“when a party opposing 

summary judgment fails to comply with the formalities of Rule 56, a court may choose to 

 

2

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be somewhat lenient in the exercise of its discretion to deal with the deficiency” (citations 

omitted)). 

III. GROSS NEGLIGENCE CLAIM 

 Plaintiffs maintain a state law tort claim against Defendants Penzone and 

Maricopa County alleging that these Defendants were grossly negligent in hiring, 

training, and supervising jail personnel. (See Doc. 209 at 5 (citing Doc. 12 at 17)). 

A. Legal Standard 

 “Gross negligence differs from ordinary negligence in quality and not degree.” 

Walls v. Arizona Dep’t of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct. App. 1991) 

(citation omitted).3

 It is “action or inaction with reckless indifference to the result or the 

rights or safety of others.” Williams v. Thude, 885 P.2d 1096, 1104 (Ariz. Ct. App. 1994). 

A person acts with reckless indifference if “he or she knows, or a reasonable person in his 

or her position ought to know: (1) that his action or inaction creates an unreasonable risk 

of harm; and (2) the risk is so great that it is highly probably that harm will result.” Id. at 

1102. 

 To bring a gross negligence claim to the jury, “gross negligence need not be 

established conclusively, although the evidence must be more than slight and may not 

border on conjecture.” Luchanski v. Congrove, 971 P.2d 636, 639-40 (Ariz. Ct. App. 

1998) (citation omitted). In this case, Plaintiffs’ gross negligence claim is premised on 

Defendants’ alleged failure to train their employees. In order to prevail on a negligent 

training claim, a plaintiff must demonstrate “that a defendant’s training or lack thereof 

was negligent and that such negligent training was the proximate cause of the plaintiff’s 

injuries.” Rodrigues v. Ryan, CV-16-08272-PCT-DGC (ESW), 2017 WL 2539236, at *5 

(D. Ariz. May 16, 2017) (citation omitted). 

 

3

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breach of the duty of that standard; (3) a causal connection between the defendant’s 

conduct and the resulting injury; and (4) actual damages.” Alegria v. United States, CV 

11-809-TUC-HCE, 2012 WL 12842258, at *4 (D. Ariz. Nov. 20, 2012) (citing Gipson v. 

Kasey, 150 P.3d 228, 230 (Ariz. 2007)). Here, Defendants’ Motion (Doc. 209) only includes argument on the element of causation, so the Court will focus its inquiry there. 
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B. Analysis 

 1. Plaintiffs’ Claim is Direct, not Derivative 

 First, Defendants argue that this is a derivative claim against Defendants Penzone 

and Maricopa County, which fails because “no gross negligence claim remains against 

the individual officer Defendants.” (Doc. 209 at 5). Plaintiffs’ gross negligence claim, 

however, is “direct and not derivative” because the claim stems from allegedly negligent 

employment practices. See Quinonez for & on Behalf of Quinonez v. Andersen, 696 P.2d 

1342, 1346 (Ariz. Ct. App. 1984). Further, a principal may be “liable, apart from his 

derivative liability,” for independent negligence. Torres v. Kennecott Copper Corp., 488 

P.2d 477, 479 (Ariz. Ct. App. 1971) (citations omitted). “In such a case, a judgment in 

favor of the [agent] will not ordinarily bar a recovery against the [principal],” so long as 

the principal is culpable. Id. (citing DeGraff v. Smith, 157 P.2d 342, 344 (Ariz. 1945) 

(when a principal has “been guilty of acts on which, independent[] of the acts of the 

[agent], liability may be predicated,” the principal may remain liable even if the agent is 

dismissed from the lawsuit)). Here, Plaintiffs’ are not seeking to recover on their state 

law gross negligence claim under a theory of respondeat superior, but allege that 

Defendants Penzone and Maricopa County were directly responsible for gross negligence 

in enacting a policy, practice, or custom that caused Plaintiffs’ harm. 

 Defendants point out that the Arizona Court of Appeals has stated that “[f]or an 

employer to be held liable for the negligent hiring, retention, or supervision of an 

employee, a court must first find that the employee committed a tort.” Kuehn v. Stanley, 

91 P.3d 346, 352 (Ariz. Ct. App. 2004) (quoting Mulhern v. City of Scottsdale, 799 P.2d 

15, 18 (Ariz. Ct. App. 1990)). The court further reasoned where the plaintiffs’ negligent 

supervision theory was based on the negligent act of a single employee, “[i]f the theory of 

the employee’s underlying tort fails, an employer cannot be negligent as a matter of law 

for hiring or retaining the employee.” See id. (finding that purchasers of real estate were 

owed no duty by a mortgagee and the mortgagee’s hired appraiser who performed a 

negligent appraisal; therefore, the purchasers’ claim against the mortgagee failed because 
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it was based solely on the failed, underlying claim against the appraiser).4 The case 

before this Court, however, is readily distinguishable from the context of an individual 

tortfeasor considered in Kuehn. The “underlying tort” requirement in Kuehn fails to 

contemplate a scenario in which the coordination of multiple actors, none of whom 

commits an independently negligent act, can amount to gross negligence.5

 Furthermore, applying the “underlying tort” theory in this context would 

contradict widely held principles of agency law. When the coordination of an entire 

group of employees is the alleged cause of harm to a third party, the principal may 

logically be held directly liable for negligent supervision of employees who dutifully 

carry out a bad policy devised by the principal. See Restatement (Third) of Agency § 7.05 

 

4

 For other examples, see Hall v. City of Tempe, No. CIV. 12-2094-PHX-PGR, 

2013 WL 4079199, at *3 (D. Ariz. Aug. 13, 2013) (citing Kuehn, 91 P.3d at 352 (holding that a negligent training claim against municipal defendants must be dismissed because the claim was based on the alleged use of excessive force of an officer, who the court 

found did not use excessive force)); Timeless Glob., LLC v. Olson, 1 CA-CV 15-0005, 

2016 WL 3660238, at *6 (Ariz. Ct. App. July 5, 2016) (holding that a court’s decision to dismiss all claims against a defendant-employee barred the plaintiff’s claims “against employer where employer’s liability was based solely on the negligent acts of employee” (emphasis added) (internal quotation marks and brackets omitted)); Slone v. State, No. 1 

CA-CV 07-0161, 2007 WL 5473086, at *3 (Ariz. Ct. App. Nov. 6, 2007) (“judgment for employee relieves employer of derivative liability when derivative claim is not based on 

independent grounds” (emphasis added)). 

5 See Weatherford v. State, 316, 54 P.3d 342, 345 (Ariz. Ct. App. 2002), aff’d in part, rev’d in part on other grounds sub nom Weatherford ex rel. Michael L. v. State, 81 

P.3d 320 (2003) (reasoning that the government-defendant “mistakenly relie[d] upon Mulhern” in arguing that a plaintiff’s claim against the government was barred for lack of an underlying tort by a government employee because Mulhern “fail[s] to shed light on the independent liability” of the government for negligent supervision). Although the court concluded that the individual defendants in that case “failed to follow the policies and procedures in place,” the court contemplated a situation in which “the state’s 

independent liability derives from ‘the combined acts and omissions of its employees’ ” who were not negligent in their administration of an otherwise proper policy, but rather dutifully followed a defective policy. Id. In other prison contexts, a district court may consider “whether combined acts and omissions [of staff members] created 

unconstitutional [deprivations]” to hold policymakers liable, even if no one staff member 

is responsible for the violation of a prisoner’s rights. See Ortega v. Flavetta, C 12-3426 

SBA PR, 2013 WL 2557781, at *5 (N.D. Cal. June 10, 2013); see also Garcia v. 

Lamarque, No. C 09-00235 CW (PR), 2010 WL 1875750, at *1 (N.D. Cal. May 7, 2010) (denying summary judgment on a prisoner’s Eighth Amendment claim based on 

allegations that the “combined acts and omissions” of multiple jail personnel, who were not held independently liable, gave rise to a constitutional violation by California Department of Corrections and Rehabilitation officials for devising and implementing a harmful policy). 
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(Am. Law. Inst. 2006).6 The Arizona Supreme Court previously recognized that direct 

liability of an entity is available when the entity is “alleged to have caused a 

constitutional tort through ‘a policy statement, ordinance, regulation or decision officially 

adopted and promulgated by that body’s officers.’ ” City of Phoenix v. Yarnell, 909 P.2d 

377, 384 (Ariz. 1995) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)). 

Additionally, state courts have more recently recognized that when an employer’s 

liability “is based solely on the negligence of his [employee], a judgment in favor of the 

[employee] is a judgment in favor of the [employer], but ‘[w]hen the negligence of the 

[employer] is independent of the negligence of the [employee], the result may be 

different.’ ” Angulo v. City of Phoenix, No. 1 CA-CV 12-0603, 2013 WL 3828778, at *1 

(Ariz. Ct. App. July 16, 2013) (quoting Torres, 488 P.2d at 479). Accordingly, this Court 

will not apply the “underlying tort” theory promulgated in Kuehn to bar Plaintiffs’ direct 

gross negligence claim herein. 

2. Factual Analysis 

 On the merits, Plaintiffs allege that “jail officers lacked the supervision, training, 

skill, ability, and control to protect Daughtry from a foreseeable and preventable attack” 

by housing Daughtry with Bates. (Doc. 230 at 7). In support of this argument, Plaintiffs 

offer the opinions of Expert Jeffrey Eiser, a jail operations expert. Expert Eiser opines 

that the “policies, practices, and customs” employed by Defendants demonstrate 

deliberate indifference to Daughtry’s well-being by housing “seriously mentally ill” 

prisoners together in the Disciplinary Segregation Unit. (Doc. 230 at 8 (citing Doc. 229 at 

¶ 192)). If, as Expert Eiser opines, inadequate training allowed Defendants to house 

Daughtry and Bates together when a reasonable jailer would have kept them separate, a 

reasonable jury could find that the failure to train is both a grossly negligent act and the 

 

6

 “A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent's conduct if the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.” Restatement (Third) of Agency § 7.05(1). While it is not binding authority, Arizona frequently looks to the Restatement (Third) of Agency for guidance. 

See, e.g., Hayes v. US Airways Group, Inc., No. 1 CA-CV 13-0036, 2013 WL 6507189, 

at *2 (Ariz. Ct. App. Dec. 10, 2013) (“adopting Restatement (Third) of Agency § 7.07”). 
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proximate cause of Plaintiffs’ injuries. 

 Plaintiffs’ Expert Eiser further opines that a “systemic lack of training and 

direction” regarding cell assignments failed to protect inmates from being placed in 

unnecessarily dangerous situations. (Id. (citing Doc. 229 at ¶ 195)). That is precisely the 

situation, Plaintiffs argue, that resulted in Daughtry’s death when Bates was assigned to 

his cell without proper regard for the mental health status of each inmate. (Id.). 

Conversely, Defendants contend that jail personnel “received an abundance of training; 

that the training was proper and adequate; and that they followed their training in 

assigning and escorting Bates” to Daughtry’s cell (Doc. 209 at 7 (citing Doc. 210 at ¶¶ 

34, 35, 51-53, 92-107)). While both parties agree that Defendants’ Jail Management 

System (“JMS”) notes factors that jail personnel must consider in making cell 

assignments, including whether an inmate is “seriously mentally ill,” the parties disagree 

as to whether Bates and Daughtry were properly classified and whether officers were 

trained to recognize symptoms of mental illness that result in violent interactions. 

(Compare Doc. 210 at ¶ 13 with Doc. 229 at ¶ 13). 

 On July 9, 2014, Plaintiffs provide that Bates was sent to the Disciplinary 

Segregation Unit after he violated facility rules and exhibited abnormal behavior, which 

Plaintiffs’ experts contend should have required a psychiatric evaluation. (See Doc. 230 

at 4; Doc. 229 at ¶¶ 34, 51 (Bates was “saying something about Junior, where is Junior, 

and appeared to be in a daze”)). Bates was assigned to Daughtry’s cell even though Bates 

had a known history of violence and Daughtry was in the Disciplinary Segregation Unit 

due to a fight with his previous cellmate. (See Doc. 230 at 4 (citing Doc. 229 at ¶ 11);

Doc. 229 at ¶ 150). Defendants provide that Defendant Officers’ review of JMS showed 

that neither inmate had to be housed alone, there was no note in JMS requiring that they 

be separated from each other, and Defendant Officers believed Bates to be malingering 

rather than demonstrating symptoms of mental instability. (See Doc. 209 at 4). Defendant 

Officers left the inmates alone in a shared cell, consistent with cell assignment policy, 

and returned approximately 16 to 30 minute later to find Daughtry injured. (Compare 
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Doc. 209 at 5 with Doc. 230 at 6). 

 Plaintiffs provide sufficient evidence that Bates’ and Daughtry’s respective mental 

health histories and behavior exhibited on the day of the incident could indicate to a 

properly trained and fully-informed officer that the pair could not be safely housed 

together. This creates a genuine dispute of fact as to whether Defendants acted with 

reckless indifference towards Daughtry’s safety and whether the cell assignment caused 

Plaintiffs’ injuries. (See Doc. 230 at 4-5). Accordingly, the Court finds that Defendants 

Penzone and Maricopa County have not shown they are entitled to summary judgment as 

to the state law claim of gross negligence. 

IV. THE § 1983 CLAIMS 

 Plaintiffs maintain Fourteenth Amendment failure-to-protect and familialassociation claims under 42 U.S.C. § 1983 against Defendants Penzone, Alvarez, 

Maricopa County, Hovanec, Huber, and Hansen. (See Doc. 209 at 2; Doc. 12 at 18-20).7

 

A. Qualified Immunity 

 Defendants argue that Defendant Officers Hovanec, Huber, and Hansen (the 

“Individual Defendants”) are entitled to qualified immunity on Plaintiffs’ § 1983 claims. 

(See Doc. 209 at 8). 

 1. Legal Standard 

 Section 1983 provides a private right of action against individuals acting under 

color of state law who violate others’ constitutional or statutory rights. 42 U.S.C. § 1983. 

Specifically, a jail officer is liable under § 1983 for Fourteenth Amendment violations if 

the officer “acted with deliberate indifference to a substantial risk of serious harm.” Byrd 

v. Maricopa Cnty. Bd. of Supervisors, 845 F.3d 919, 924 (9th Cir. 2017) (citing Frost v. 

Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998)). Qualified immunity, however, shields 

 

7

 The failure of a municipality’s policymakers may serve as the basis for § 1983 liability. See Wilson v. Maricopa County, 463 F. Supp. 2d 987, 990 (D. Ariz. 2006) (citing City of Canton v. Harris, 489 U.S. 378, 388-90 (1989)). There is no dispute that Sheriff Penzone has final policymaking authority under Arizona law with respect to the operation of Maricopa County jails or that Director Alvarez has final policymaking authority under Arizona law with respect to health services of Maricopa County jails. See 

id. at 990-97. 
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certain government actors from civil liability under § 1983 when applicable. Qualified 

immunity “is an immunity from suit rather than a mere defense to liability; and like an 

absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” 

Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (emphasis in original). Defendants are 

entitled to qualified immunity if their conduct did not violate a clearly established 

constitutional right “of which a reasonable person would have known.” Harlow v. 

Fitzgerald, 457 U.S. 800, 801 (1982). 

 The United States Supreme Court has set forth a two-part test—comprised of the 

“constitutional inquiry” and the “qualified immunity inquiry”—to determine if a 

defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001), 

overruled on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). The 

“constitutional inquiry” examines whether the alleged facts, as viewed in the light most 

favorable to the non-moving party, demonstrate that a defendant’s conduct violated one 

of a plaintiff’s constitutional rights. Id. If the alleged facts show that a right was violated, 

the Court must then address the “qualified immunity inquiry” to determine whether the 

right was “clearly established.” Id. at 201–02. The qualified immunity inquiry includes a 

further dimension “to grant officers immunity for reasonable mistakes as to the legality of 

their actions.” Id. at 206. The qualified immunity inquiry “must be undertaken in [the] 

light of the specific context of the case, not as a broad general proposition.” Id. at 201. 

 2. Analysis 

 Here, Daughtry had a “due process right to be free from violence from other 

inmates” stemming from the Eighth and Fourteenth Amendments. Castro v. County of 

Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016), cert. denied sub nom. Los Angeles 

County, Cal. v. Castro, 137 S. Ct. 831 (2017) (quoting Farmer v. Brennan, 511 U.S. 825, 

833 (1994)) (“the Supreme Court made clear that ‘prison officials have a duty to protect 

prisoners from violence at the hands of other prisoners’ ”). Defendants argue, however, 

that the Individual Defendants’ conduct was reasonable under the circumstances and thus, 

they are entitled to qualified immunity for their actions. (Doc. 209 at 9-11). 
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 i. Defendant Hovanec 

 The parties agree that Defendant Hovanec made the cell assignment decision to 

place Bates in a shared cell with Daughtry on the day of the incident, consistent with his 

role as Tower Officer. (See Doc. 209 at 9). Plaintiffs provide no evidence to dispute that 

Defendant Hovanec followed Defendant Maricopa County’s policies and procedures in 

making the cell assignment decision by reviewing JMS notes to confirm that the inmates 

were not required to be housed alone and no other JMS notes indicated that housing these 

particular inmates together would pose a heightened risk of harm. (Doc. 209 at 10; 

compare Doc. 210 at ¶¶ 34-35 with Doc. 229 at ¶¶ 34-35). Plaintiffs’ Expert Eiser 

concluded that Defendants’ jail-classification and cell assignment system was deficient in 

that it failed to consider an inmate’s mental health status and “information about an 

inmate’s risk was not available to or reviewed by the Tower Officer—the person who 

made the actual cell [assignment] here.” (Doc. 230 at 9-10). This opinion suggests that 

County practices may have been inadequate to protect Daughtry, but nothing that 

Defendant Hovanec did in following procedure to make the cell assignment demonstrates 

that he “acted with deliberate indifference to a substantial risk of serious harm.” Byrd, 

845 F.3d at 924. Accordingly, Defendant Hovanec is entitled to qualified immunity on 

Plaintiffs’ § 1983 claims. 

 ii. Defendants Huber and Hansen 

 The parties also agree that Defendants Huber and Hansen escorted Bates to the 

shared cell with Daughtry on the day of the incident at Defendant Hovanec’s direction. 

(See Doc. 209 at 9; compare Doc. 210 at ¶ 45 with Doc. 229 at ¶ 45). Plaintiffs argue that 

the escorting officers observed Bates acting “abnormally” and “one other inmate said 

Bates told detention officers he did not want to go into the cell with Daughtry” when 

Bates was left at the cell. (Doc. 230 at 11). Even if the escorting officers observed Bates 

exhibit abnormal behavior and verbally protest the assignment, which is based on 

hearsay, that is not a sufficient basis to alert a reasonable officer that leaving Bates in a 

shared cell with Daughtry poses a significant safety risk to Daughtry without additional 
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information. Plaintiffs’ argument that inadequate training and awareness of mental health 

status resulted in the Individual Defendants “ignoring a substantial, serious risk to 

Daughtry’s safety and health” by placing Bates in the cell similarly falls short of the 

standard required to deny qualified immunity. (See Doc. 230 at 11); see also Malley v. 

Briggs, 475 U.S. 335, 341 (1986) (qualified immunity shields “all but the plainly 

incompetent or those who knowingly violate the law”). 

 Plaintiffs must demonstrate “that the prison officials were aware of a ‘substantial 

risk of serious harm’ to an inmate’s health or safety.” Seawright v. Arizona, CV 11-1304-

PHX-JAT, 2013 WL 452885, at *5 (D. Ariz. Feb. 6, 2013) (quoting Farmer, 511 U.S. at 

837). Here, the Court finds that Defendants Huber and Hansen did not act “with 

deliberate indifference to a substantial risk of serious harm” in carrying out Defendant 

Hovanec’s cell assignment directive. Byrd, 845 F.3d at 924; see also Carrasquilla v. 

County of Tulare, 1:15-CV-00740-BAM, 2016 WL 7474520, at *12 (E.D. Cal. Dec. 27, 

2016) (finding that “placement alone” in a cell where an inmate was later attacked by his 

cellmate was insufficient to establish deliberate indifference on behalf of the escorting 

officers). Accordingly, Defendants Huber and Hansen are entitled to qualified immunity 

on Plaintiffs’ § 1983 claims. 

B. Monell Claim 

 1. Legal Standard 

 “[A] municipality can be found liable under § 1983 only where the municipality 

itself causes the constitutional violation at issue.” Harris, 489 U.S. at 385 (citing Monell 

v. Dept. of Soc. Servs. of City of New York, 436 U.S. 658 (1978)). To establish § 1983 

liability for governmental entities under Monell, a plaintiff must prove: 

(1) that [the plaintiff] possessed a constitutional right of 

which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate indifference 

to the plaintiff’s constitutional right; and, (4) that the policy is the moving force behind the constitutional violation.” 

Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (internal quotation marks 

and citation omitted). The alleged constitutional violation may be pursuant to a written 
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governmental policy or a “longstanding practice or custom which constitutes the standard 

operating procedure of the local governmental entity.” Gillette v. Delmore, 979 F.2d 

1342, 1346 (9th Cir. 1992) (internal quotation marks and citation omitted). 

 2. Analysis 

 Here, according to Expert Eiser, there was a “pattern, practice, and custom” 

employed by Defendants to ignore inmates’ mental health status and the resulting need to 

be protected from potential safety risks in the Disciplinary Segregation Unit. (Doc. 230 at 

10-11 (citing Doc. 229 at ¶ 195)). Plaintiffs contend that this practice of punishing, rather 

than treating mentally ill inmates and “requiring the Tower Officer to make actual cell 

assignments and reassignments in the Disciplinary Segregation Unit, without review of 

the background and risk identification information on each inmate, created a substantial 

and serious risk to Daughtry’s safety.” (Id. at 12). 

 Expert Eiser opines that JMS notes, both routinely and in this case, ignored 

pertinent mental health information, which should have factored into cell assignment 

decisions if available. (Id. at 12-13). This argument is supported by Classification 

Supervisor Rosie Carrillo’s March 4, 2014 e-mail that Daughtry was “probably not 

suitable for [m]aximum security” and that it “appears this inmate has more psychological 

issues” than disciplinary issues, yet Daughtry was repeatedly assigned to the Disciplinary 

Segregation Unit as punishment for psychiatric outbursts. (Id. at 13 (citing Doc. 229 at ¶¶ 

111, 203)). Daughtry’s classification to maximum security came from an attempt to jump 

onto a razor-wire fence in full view of guards, which was classified as an “escape,” 

leading to the punitive classification, as opposed to a mental health evaluation. (Id. at 11 

(citing Doc. 229 at ¶ 196). 

 Expert Eiser’s opinions coincide with those of Plaintiffs’ Expert Pablo Stewart, 

M.D. Expert Stewart opines that Daughtry belonged “in psychiatric housing” due to his 

mental illness, but Defendants’ practice of sending inmates to the Disciplinary 

Segregation Unit without proper psychiatry evaluation gave rise to a significant risk of 

violence. (Id. at 14 (citing Doc. 229 at ¶ 206)). Plaintiffs’ experts also agree that the risk 
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posed by housing two mentally ill inmates together was “obvious,” thus establishing 

deliberate indifference. (See Doc. 230 at 8, 13); Farmer, 511 U.S. at 842 (deliberate 

indifference may be established “from the very fact that the risk was obvious”). Finally, 

Plaintiffs argue that the failure to train jail personnel to recognize, catalogue, and 

consider mental health information and related risk factors in cell assignments led the 

Individual Defendants to place Bates and Daughtry together, which was the “moving 

force” behind Daughtry’s injuries. See Dougherty, 654 F.3d at 900. 

 Defendants dispute that they failed to properly catalogue and consider mental 

health information, but the cell assignment process and lack of consideration given to the 

mental states of Bates and Daughtry on the day of the incident creates a genuine dispute 

as to this issue. See supra part III(B). Further, if such a policy existed, Defendants failed 

to carry their burden of demonstrating that such a policy did not pose an obvious risk to 

Daughtry and that policy was not the proximate cause of Plaintiffs’ injuries. Accordingly, 

the Court finds that Defendants are not entitled to summary judgment on Plaintiffs’ 

Monell claim. Thus, summary judgment is denied as to Defendants Maricopa County, 

Penzone in his official capacity, and Alvarez in his official capacity as to this claim. 

C. Familial Association Claim 

 1. Legal Standard 

 In the Ninth Circuit, it is well established that “parents have a fundamental liberty 

interest in maintaining a relationship with their children which is protected by the 

Fourteenth Amendment.” Doe v. Dickenson, 615 F. Supp. 2d 1002, 1012 (D. Ariz. 2009) 

(quoting Kelson v. City of Springfield, 767 F.2d 651, 654 (9th Cir. 1985)). Specifically, 

“a parent has a constitutionally protected liberty interest in the companionship and 

society of his or her child,” and “[t]he state’s interference with that liberty interest 

without due process of law is remediable under section 1983.” Kelson, 767 F.2d at 655. 

 2. Analysis 

Here, Plaintiffs set out a familial association claim under § 1983 in their 

Complaint through arguing that “Plaintiffs have been deprived of their constitutional 
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interest in the continued familial companionship and society of their son Daughtry, 

caused by his untimely death.” (Doc. 12 at 21). Defendants argue that Plaintiffs’ 

Fourteenth Amendment familial association claim should fail “[b]ecause there is no 

underlying constitutional violation[.]” (Doc. 209 at 15). Defendants further correctly 

identify that Plaintiffs’ Response (Doc. 230) fails to ever mention the familial association 

claim by name. (Doc. 236 at 11). 

 While it is true that Plaintiffs have not specifically addressed the survival of their 

familial association claim, Defendants’ sole argument on this issue is that the familial 

association claim fails because there is no underlying constitutional violation by 

Defendants. (Id.; see also Doc. 209 at 15). Plaintiffs’ familial association claim is 

premised on Plaintiffs’ Monell claim and alleged underlying Fourteenth Amendment 

failure-to-protect violation, which Plaintiffs did address at length. (See Doc. 230 at 9-15). 

The Court found that Plaintiffs’ Monell claim presents a triable issue for the jury. See 

supra part IV(B)(2). Therefore, it logically stands that Plaintiffs’ familial association 

claim should also survive summary judgment because the premise of Defendants’ 

argument on this issue—that there is no underlying constitutional violation—remains a 

genuine issue for trial. Accordingly, summary judgment is denied as to Plaintiffs’ familial 

association claim. 

V. PUNITIVE DAMAGE CLAIMS 

 “Although a municipality may be liable for compensatory damages in § 1983 

actions, it is immune from punitive damages under the statute.” Mitchell v. Dupnik, 75 

F.3d 517, 527 (9th Cir. 1996) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 

247, 271 (1981)). Further, “[a] suit against a governmental officer in his official capacity 

is equivalent to a suit against the governmental entity itself.” Larez v. City of Los 

Angeles, 946 F.2d 630, 646 (9th Cir. 1991); see also Mitchell, 75 F.3d at 527 (holding 

that a district court’s award of punitive damages against government employees in their 

official capacities “is in reality an assessment against the county, which is immune from 

such damages”). Defendants are entitled to summary judgment on the § 1983 claim 
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against the Individual Defendants, which forecloses the possibility of punitive damages in 

this case.8

 

VI. CONCLUSION 

 For the reasons set forth above, 

 IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 209) is 

GRANTED in part and DENIED in part. Summary Judgment is granted to Defendants 

Hovanec, Huber, and Hansen, but denied as to all other Defendants. Summary Judgement 

is granted to Defendants on Plaintiffs’ punitive damages claim, but denied as to all 

remaining claims. The Clerk of the Court shall not enter judgment at this time. 

 Dated this 22nd day of December, 2017. 

 

8

 While the Court construes all claims against Defendants Penzone and Alvarez to 

be in their official capacities, even if any claims persisted against any defendant in an individual capacity, Plaintiffs failed to put forward any evidence of “evil motive or intent” or “reckless or callous indifference to [Plaintiffs’] federally protected rights” by either individual. See Smith v. Wade, 461 U.S. 30, 30 (1983). Further, Plaintiffs only referenced punitive damages in relation to the § 1983 claims; to the extent that there was 

a claim for punitive damages with respect to Plaintiffs’ state law claim, Plaintiffs failed to 

offer any evidence on that issue and Defendants are entitled to summary judgment on that issue.