Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Pending is Defendant's Motion For Summary Judgment (Doc. #75). For the reasons 19 set forth below, Defendant's Motion will be granted and all other motions denied as moot. 20 I. 21 On August 30, 2002, Plaintiffs filed suit against Defendants in Maricopa County 22 Superior Court, alleging that Jose Ramirez ("Jose"), a special education student was 23 physically and sexually assaulted while attending two different schools within the Glendale 24 Union High School District No. 205 ("District"). Plaintiffs allege that the first incident 25 occurred on or about September or October 2000 at Cortez High School ("Cortez incident"), 26 and the second occurred on or about October 2001 while attending Apollo High School 27 ("Apollo incident"). (Doc. #1, Complaint, pp. 9-12). As a result of these incidents, Plaintiffs 28
Case 2:03-cv-00060-ROS Document 131 Filed 09/20/2006 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Joe Ramirez and Ana Ramirez,) Individually and as Parents and Legal) ) Guardians of Jose Ramirez,, ) ) Plaintiff, ) ) vs. ) ) Glendale Union High School District No.) ) 205, et al., ) ) Defendant. ) )

No. 03-0060-PHX-ROS ORDER

BACKGROUND

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brought suit against Defendants for (1) negligent hiring, supervision and retention ("Parents' loss of consortium claim");1 (2) negligence/negligent supervision ("Jose's state law negligence claim"); (3) violating Title IX of the Educational Amendments of 1992, 20 U.S.C. § 1681(a) ("Title IX claim"); and (4) state created danger in violation of 42 U.S.C. § 1983 ("1983 claim"). (Id.) This case was removed from Maricopa County Superior Court on January 10, 2003 (Doc. #1). Upon Defendants' Motion to Dismiss, the Court dismissed the Parents' loss of consortium claim as being time barred under the one-year statute of limitations under A.R.S. § 12-821 (Doc. #15). Plaintiffs stipulated to the dismissal of Count III (Title IX claim) on February 17, 2004. (Doc. #27). On March 16, 2005, Defendants moved for summary judgment on the remaining claims, which include Jose's negligence claim and both Jose's and his parents' 1983 claim. (Doc. #75).2 Plaintiffs responded on April 25, 2005 (Doc. #80), and Defendants replied on May 17, 2005 (Doc. #84). At a discovery dispute hearing on March 8, 2006, the Court declined to extend discovery and defer consideration of summary judgment until after Plaintiffs could depose Dominic Guzman,3 an instructional aide who allegedly voluntarily left the school district to work elsewhere. It appeared as if there is nothing about which Mr. Guzman could testify that would affect the legal issues raised in Defendant's Motion For Summary Judgment. (Doc. #126). Mr. Guzman is not an expert witness and was not in a position to have established

Count I of the Complaint alleges that as a result of Defendant's negligence, Plaintiffs Joe and Ana Ramirez were "deprived of the comfort, care, society, companionship and consortium with their child, Plaintiff Jose Ramirez." On January 20, 2006, Plaintiffs notified the Court that the parties agreed that any claims arising out of the alleged Apollo incident would be dismissed. (Doc. #95). In its April 19, 2006 Order, the Court stated that it would construe Defendant's Motion For Summary Judgment accordingly. Due to Defendant's late disclosure of Mr. Guzman's whereabouts, Plaintiffs were unable, until recently, to locate Mr. Guzman. -2Case 2:03-cv-00060-ROS Document 131 Filed 09/20/2006 Page 2 of 9
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the official policy of the District.4 As a precautionary measure, however, the Court stated that it would allow Plaintiffs to proffer what they believe Mr. Guzman will testify to that would defeat the Motion For Summary Judgment, either on the legal issues or because Plaintiffs believe that his testimony will create material issues of fact disputing Defendant's position on the legal issues. The Court made clear that any proffer made by the Plaintiffs of Mr. Guzman's testimony would be taken as true. (Id.). On April 26, 2006 Plaintiffs filed a State of Avowals of Expected Testimony of Dominic Guzman. (Doc. #128).5 The Court held oral argument on the Motion For Summary Judgment on April 27, 2006. II. JURISDICTION & CHOICE OF LAW The Court possesses federal question jurisdiction under 44 U.S.C. § 1331 over the federal 1983 claim and supplemental jurisdiction under 44 U.S.C. § 1367 over the state law negligence claim. Arizona law governs resolution of the state law claim. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938). III. DISCUSSION A. Legal Standard

A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

In Plaintiffs' response to Defendant's Motion For Summary Judgment, Plaintiffs do not challenge Defendant's assertion of the standard governing claims brought under § 1983, which is limited to deprivations of federally protected rights caused by actions taken pursuant to official policy. See Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 691 (1978). "[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." Board of the County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997). After reviewing Mr. Guzman's proffered testimony, the Court finds that it does not raise a material issue of fact on the two legal issues on summary judgment, because he is neither an expert witness, nor is he expected to testify about an official policy that infringed upon Plaintiffs' rights. -3Case 2:03-cv-00060-ROS Document 131 Filed 09/20/2006 Page 3 of 9
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law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Substantive law determines which facts are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Also, the dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate 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." Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 323. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). However, because "credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, . . . the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). B. Analysis 1. State Law Negligence Claim -4Case 2:03-cv-00060-ROS Document 131 Filed 09/20/2006 Page 4 of 9

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The District contends that because Plaintiff Jose failed to disclose an expert witness who will testify as to the level of supervision needed for special needs students or who will testify as to the level of training required for special needs teachers and staff, he cannot meet his burden of establishing the appropriate standard of care. Thus, the issue raised is legal rather than factual, that is whether Plaintiff must use expert witness testimony to identify the District's standard of care in order to establish a state law claim for negligence. To prevail on a negligence claim, a plaintiff must prove (1) the existence of a duty recognized by the law that obligates the defendant to conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the breach and the injury; and (4) actual injuries or damages. Ontiveros v. Borak, 667 P.2d 200, 204 (Ariz. 1983). The District does not dispute that it owes a duty to Jose. (Doc. #75, p. 4). Rather, it argues that Jose is seeking to hold it to a heightened standard of care based on the mental and physical capabilities of the students involved in the alleged assault, and that he has failed to establish that this standard of care applies. Ordinarily, the standard of care required in Arizona is that a person must act with reasonable care under the circumstances. Markowitz v. Arizona Parks Bd., 706 P.2d 364, 366 (Ariz. 1985). In the Complaint, Plaintiff Jose alleges that the District has several duties, including (1) "a duty of care to ensure adequate supervision and precautions for the safety and security of vulnerable minor children;" (2) "a duty of care to ensure that the minor children cannot be subject to physical assault or harm;" and (3) "a duty to employ safeguards, policies and procedures which afford the minor children protection from sexual and physical assaults by fellow students." (Compl., ¶¶25-27). Plaintiff Jose further allege that the District "is entrusted with the care and supervision of students whose physical and mental capabilities are such that added and more strict guidance, attention and supervision is necessary,"

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implying that these duties arise out of such entrustment. (Id., ¶ 28). Jose concedes that these duties require the District to conform to a heightened standard.6 As with all elements of a negligence claim, a plaintiff bears the burden of establishing the particular standard of care. See Powder Horn Nursery, Inc. v. Soil & Plant Laboratory, Inc., 579 P.2d 582, 586 (Ariz. Ct. App. 1978). Plaintiff Jose has not disclosed any witnesses who will testify as to the level of supervision needed for special needs students or any witnesses who will testify as to the level of training required for special needs teachers and staff. Matters that are outside the scope of jurors' common knowledge must be proven or explained by expert testimony. See, e.g., United States v. Lennick, 18 F.3d 814, 821 (9th Cir. 1994); Frisone v. United States, 270 F.2d 401, 403 (9th Cir. 1959). With respect to proof of the requisite standard of care in negligence cases, Arizona courts have found that expert testimony was necessary when the required standard of care was outside the common knowledge of a lay person. See, e.g., Thomas v. Goudreault, 786 P.2d 1010, 1022 (Ariz. Ct. App. 1989) (affirming directed verdict for lack of expert evidence as to what a reasonable air conditioning repairman should have known, recognized or done); Powder Horn Nursery, 579 P.2d at 586 (affirming summary judgment for failure to establish requisite standard of care for plant laboratory through expert testimony); Maricopa County v. Cowart, 471 P.2d 265 (Ariz. 1970) (expert testimony necessary to establish requisite standard of care for supervision of juveniles detained in a juvenile home). The individuals that allegedly assaulted Jose, and Jose himself, suffer from varying degrees of mental retardation. In addition, one of the students is blind. Although they were all members of a special education class, their needs and abilities are different from those of other high school students. Therefore, the requisite level of supervision of those students,
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Although Jose fails to identify the standard of care, it can be inferred from the Complaint that he seeks to hold the District to a heightened standard that accounts for the special needs of Jose and the students involved in the alleged incident. Moreover, in his Response, Jose fails to assert that any other standard of care applies, or did he otherwise respond to the District's argument. The cases Jose cites about the duty of care relate only to the existence of a duty, which the District does not dispute. -6Case 2:03-cv-00060-ROS Document 131 Filed 09/20/2006 Page 6 of 9

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and requisite training for teachers and staff, is not within the common knowledge of the general community. Expert testimony is required. Plaintiff Jose's only argument is that no expert is needed, because the District had an internal policy that somehow set the standard of care. (Doc. #80). However, the evidence does not create a genuine issue of material fact supporting this argument, and even if it did, it does not establish the standard of care under Arizona law. Because Jose has not disclosed any witness who will testify to the material issues, he cannot meet his burden of establishing the standard of care, and cannot maintain his state law negligence claim as a matter of law. Summary judgment will be granted on this claim. 2. 1983 Claim

Defendant argues that summary judgment is warranted, because Plaintiffs fail to allege that the District, as an entity through its employees and officials, had an official policy that infringed on the constitutional rights of Plaintiffs pursuant to § 1983. See Defendant's Motion For Summary Judgment (Doc. #75). Section 1983 creates a cause of action against a person who, acting under color of state law, deprives another of rights guaranteed under the Constitution. McGrath v. Scott, 250 F. Supp. 2d 1218, 1221 (D. Ariz. 2003). It fails to create any substantive rights; instead, it constitutes a vehicle whereby plaintiffs can challenge actions by governmental officials. Id. Liability that "depends upon enforcement by individuals of a municipal policy, practice or decision of a policymaker that causes the violation of the [p]laintiff's federally protected rights" is known as "municipal liability." Id. at 1222-23. Plaintiffs allege that the District as an entity is liable under § 1983. Thus, the Court must apply the standards applicable to municipal liability. Municipal liability under § 1983 is limited to deprivations of federally protected rights caused by actions taken pursuant to official policy. See Monell v. New York City Dept. of Social Serv., 436 U.S. 658, 691 (1978). Moreover, an entity cannot be held liable under § 1983 for mere negligence, but only where a plaintiff can establish deliberate indifference, intent and conduct on behalf of the municipality itself. See Bd. of County Commr's of Bryan County, Okl. v. Brown, 520 U.S. 397, 400 (1997). -7Case 2:03-cv-00060-ROS Document 131 Filed 09/20/2006 Page 7 of 9

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Plaintiffs fail to allege in either the Complaint or any papers filed with the Court on summary judgment what constitutional right or federal statutory right has been violated. At oral argument, the Court asked Plaintiffs which right had been violated; counsel responded only that the school's policy violated Plaintiffs' constitutional due process rights. Without identifying a specific constitutional right that has been violated and without explaining how it was violated, Plaintiffs cannot meet their threshold burden. Moreover, Plaintiffs failed to allege that the District promulgated any official policy that deprived them of their constitutional rights. The assertion that the District failed to provide the level of supervision necessary to protect Jose is insufficient to give rise to liability under § 1983. See Dorothy J. v. Little Rock School Dist., 7 F.3d 729 (8th Cir. 1993) (state-mandated school attendance did not impose constitutional duty on state to protect mentally retarded students under § 1983). Summary judgment will be granted. 3. Sanctions

In its April 19, 2006 Order (Doc. #126), the Court vacated the show cause hearing until final resolution of this case. The Court will not impose sanctions, because Plaintiffs' counsel has shown good cause for filing a second cause of action, Ramirez v. Glendale Union High School Dist. No. 205, et al., CV 04-2908 ("Ramirez II").

Accordingly, IT IS ORDERED that Defendant's Motion For Summary Judgment (Doc. #75) is granted. IT IS FURTHER ORDERED that all pending motions are denied as moot. The Clerk of Court shall dismiss this case in its entirety.

DATED this 20th day of September, 2006. -8Case 2:03-cv-00060-ROS Document 131 Filed 09/20/2006 Page 8 of 9

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