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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Albert Brinkman, 

Plaintiff, 

v. 

Charles Ryan, et al., 

Defendants.

No. CV 15-02027-PHX-ROS

ORDER 

 Plaintiff Albert Brinkman, who is currently confined in the Hutchinson 

Correctional Facility in Hutchinson, Kansas, brought this civil rights case regarding 

incidents that took place at Arizona State Prison Complex (ASPC)-Lewis. (Doc. 19.) 

Plaintiff’s First Amended Complaint raises federal claims pursuant to 42 U.S.C. § 1983 

as well as state law tort claims. Before the Court is Defendant Hudson’s Motion to 

Dismiss Count Ten of the First Amended Complaint for failure to state a claim pursuant 

to Rule 12(b)(6) of the Federal Rules of Civil Procedure; Plaintiff opposes the motion. 

(Docs. 28, 34.) Also before the Court is the Magistrate Judge’s Report and 

Recommendation (“R&R”) recommending that this action be dismissed without 

prejudice based on Plaintiff’s failure to notify the Court of his current address. (Doc. 31.) 

 The Court will reject the R&R, grant Defendant’s motion, and dismiss Count Ten 

of the First Amended Complaint. 

I. Background 

 In his First Amended Complaint, Plaintiff alleged that Defendant Lieutenant 

Hudson, Corrections Supervisor at the ASPC-Lewis Bachman Unit, violated his Eighth 

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Amendment rights and state law when she refused to allow Plaintiff to access his 

medications and inhaler during a May 7, 2015 move, which resulted in Plaintiff having an 

asthma attack. (Doc. 19 at 13–15.) 

 On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff 

stated Eighth Amendment claims in Counts Eight and Nine against Hudson and a state 

law negligence claim against Hudson in Count Ten. (Doc. 20 at 7–8.) The Court ordered 

Hudson to answer those claims and dismissed the remaining claims and Defendants. (Id. 

at 9.) 

 Hudson now moves to dismiss Plaintiff’s state law claim in Count Ten on the 

ground that A.R.S. § 31-201.01(F) requires that such claims can only be brought against 

the state. 

II. Report and Recommendation 

On October 25, 2016, Magistrate Judge Bridget S. Bade issued an R&R 

recommending that this action be dismissed without prejudice based on Plaintiff’s failure 

to notify the Court of his current address. (Doc. 31). On October 31, 2016, Plaintiff 

notified the Court of his new address. (Doc. 34 at 1.) Accordingly, the R&R will be 

rejected, and the Court will allow the case to proceed.

III. Motion to Dismiss 

 Arizona Revised Statutes § 31-201.01(F) provides that “[a]ny and all causes of 

action which may arise out of tort caused by the director, prison officers or employees of 

the department, within the scope of their legal duty, shall run only against the state.” 

Ariz. Rev. Stat. Ann. § 31-201.01(F). Hudson argues that Plaintiff has failed to state a 

claim upon which relief can be granted against her for negligence in Count Ten of the 

First Amended Complaint because such claims are barred by Arizona Revised Statutes § 

31-201.01(F). Plaintiff contends that Hudson was not acting within the scope of her legal 

duties when she refused to allow him to access his medications while he was being 

moved. (Doc. 34 at 2.) 

. . . 

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 Plaintiff’s assertions do not support his contention that Hudson was not acting 

within the scope of her legal duties. “Conduct falls within the scope [of employment] if 

it is the kind the employee is employed to perform, it occurs within the authorized time 

and space limits, and furthers the employer’s business even if the employer has expressly 

forbidden it.” Baker ex rel Hall Brake Supply Inc. v. Stewart Title & Trust, 5 P.3d 249, 

254 (Ariz. App. 2000).) Plaintiff’s claims against Hudson arose out of actions Hudson 

allegedly took while Plaintiff was being moved. All of Plaintiff’s allegations against 

Hudson relate to Hudson’s conduct as a Corrections Supervisor, and everything Hudson 

allegedly did occurred in furtherance of her duty to manage and transport inmates. 

Accordingly, Plaintiff’s negligence claim against Hudson is barred by Arizona Revised 

Statutes § 31-201.01(F). 

IT IS ORDERED: 

 (1) The Report and Recommendation (Doc. 31) is rejected. 

 (2) Defendant Hudson’s Motion to Dismiss (Doc. 28) is granted, and Count 

Ten of the First Amended Complaint is dismissed. 

 (3) The only claims remaining in the action are Counts Eight and Nine against 

Defendant Hudson. 

 Dated this 27th day of December, 2016. 

Honorable Roslyn O. Silver

Senior United States District Judge

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