Opinion
CV-22-00300-PHX-DWL
11-02-2022
Jessica Fidler, Plaintiff, v. State of Arizona, et al., Defendants.
ORDER
Honorable Roslyn O. Silver Senior United States District Judge
Jessica Fidler is the mother of E.F. In April 2020, the Department of Child Services (“DCS”) removed E.F. from Fidler's custody because it suspected Fidler of abusing him. E.F. was returned to Fidler's custody approximately seven months later. Fidler and E.F. (collectively “Plaintiffs”) filed this suit seeking damages from DCS employees, the fosters parents who took temporary custody of E.F., an independent social worker who provided a report to DCS, Phoenix Children's Hospital, and two employees of Phoenix Children's Hospital. Most defendants filed motions to dismiss while the foster parents filed motions for judgment on the pleadings. Based on those motions, the majority of the claims and defendants will be dismissed. Plaintiff will be permitted to amend only some of her claims.
E.F. is a minor. Pursuant to Federal Rule of Civil Procedure 5.2, the Court will use only his initials. E.F.'s full name appears in various filings on the public docket, including filings by Plaintiffs. Both parties must use initials in all future filings.
Plaintiffs' lengthy complaint is difficult to follow. It includes a wide variety of allegations irrelevant to the claims asserted, such as an outline of Fidler's educational and work history. (Doc. 45 at 8). It also provides an unnecessary amount of detail regarding early events in E.F.'s life. For example, it begins with E.F.'s birth and then goes through each year of his life, alleging the medical conditions E.F. had that year as well as the treatments that were attempted. While some background allegations are helpful, the events that serve as the basis of this suit did not occur until E.F. was eight years old. And despite its length and detail regarding some events, the complaint provides almost no indication why certain individuals have been named as defendants.
The following is a chronological version of the events alleged non-chronologically in the complaint. Many allegations need not be recounted. In particular, E.F.'s medical history can be greatly simplified. Because it is relevant to some aspects of Plaintiffs' claims, the complaint alleges at the outset that Fidler is raising E.F. in the Jewish faith. (Doc. 45 at 8).
Fidler gave birth to E.F. in November of 2011. (Doc. 45 at 7). E.F. immediately “displayed confusing and concerning symptoms of illness that were difficult to characterize and diagnose.” (Doc. 45 at 8). Those symptoms included “seizure-like activity” and frequent infections. (Doc. 45 at 8). In late 2012, E.F. was diagnosed with “suspected” brain malformation and a “suspected” movement disorder. (Doc. 45 at 9). In 2014, “E.F. continued to have health issues, including symptoms attributed to allergies, frequent infections, seizures, and convulsions.” (Doc. 45 at 10). E.F. began seeing medical providers at Phoenix Children's Hospital (“PCH”) but no definitive diagnoses were made.
From 2014 through June 2017, E.F. was seen by numerous providers at PCH, including a cardiologist and a developmental pediatrician. E.F.'s medical conditions included “bowel and urinary incontinence,” “global developmental delays,” and seizures. (Doc. 45 at 11). During this time, E.F. was also being seen by providers other than those at PCH but, in April 2017, a “PCH doctor became E.F.'s primary care pediatrician to ensure continuity of care.” (Dc. 45 at 14). On June 29, 2017, E.F. was “not feeling well” and was admitted to PCH. (Doc. 45 at 15). E.F. was still at PCH on July 1, 2017, when Dr. Bo Borch-Christensen “strode into E.F.'s room” and began yelling at E.F. and Fidler.
According to the complaint, Dr. Christensen began by telling Fidler “there is nothing wrong with your child!” Dr. Christensen then claimed E.F. was receiving unnecessary treatments and asked “who was the quack” who prescribed certain treatments. Fidler asked Dr. Christensen to “take E.F. off all medications” but Dr. Christensen “flatly refused this request.” Later, Dr. Christensen wrote in E.F.'s medical records that “the team has concern with ‘over diagnosis' and ‘over management' with multiple diagnoses that require substantiating.” (Doc. 45 at 16). Based on this interaction, Fidler requested Dr. Christensen “be removed from treating her son.” (Doc. 45 at 16).
From July 2017 through January 2020, E.F. continued to receive extensive medical treatments at PCH and elsewhere. As of January 2020, E.F. was eight years old and was “receiving medical care related to frequent infections” and other conditions. (Doc. 45 at 24). The complaint does not identify what treatments E.F. received at PCH in January 2020 but Dr. Christensen was not involved in treating E.F. In fact, Dr. Christensen had not seen E.F. after the single interaction in 2017. Despite the lack of interaction, on January 29, 2020, “Dr. Christensen report[ed] [Fidler] to the Arizona Department of Child Services.” (Doc. 45). Plaintiffs allege Dr. Christensen was motivated “to call DCS in 2020 . . . to settle a score” from the parties' interaction in 2017. (Doc. 45 at 15). That is, Plaintiffs believe Dr. Christensen was upset after the 2017 interaction and he waited approximately two and a half years to report Fidler to DCS. The complaint also alleges, however, that Dr. Christensen may have been motivated by money because “PCH medical professionals receive a monetary incentive” when they report cases to DCS. (Doc. 45 at 24).
Shortly after Dr. Christensen's report, DCS retained social worker Drue Kaplan-Siekmann (“Kaplan”) “to review E.F.'s medical records.” Kaplan “does not have a medical background [and] does not understand how to interpret medical documentation and findings.” (Doc. 45 at 25). Sometime in February 2020, Dr. Christensen and Kaplan attended a meeting regarding E.F. Also present at that meeting were another PCH provider, Dr. Kathryn Coffman, as well as representatives from DCS, the Maricopa County Attorney's Office, and the Scottsdale Police Department. (Doc. 45 at 24). The complaint does not allege what occurred at that meeting.
Throughout February and early March of 2020, E.F. continued to be seen for his many medical ailments. On March 19, 2020, Kaplan “submitted her review of E.F.'s medical records to DCS.” In conducting that review, Kaplan “lacked neutrality” and had not been “provided . . . all of E.F.'s medical records.” (Doc. 45 at 25). In her review, Kaplan “made a finding of conscious deception or intentional conduct on behalf of [Fidler], which are hallmarks of Munchausen Syndrome by Proxy.”
Munchausen Syndrome by Proxy is “a form of child abuse in which a parent induces real or apparent symptoms of a disease in a child.” B.S. v. Somerset Cnty., 704 F.3d 250, 254 n.3 (3d Cir. 2013).
On March 31 or April 1, 2020, DCS obtained a “temporary order for removal” from the juvenile court. (Doc. 45 at 26). DCS waited until April 3, 2020, to execute that order and take custody of E.F. On that date Fidler “was called to an in-person team decision meeting with DCS investigator Lisa Burns, supervisor Melinda Quigley, and DCS case manager Marisol Manjarrez.” (Doc. 45 at 26). E.F. did not attend that meeting. Instead, he remained at home with a home health nurse. (Doc. 45 at 26). The complaint does not explain the events surrounding this meeting nor does it explain the involvement of each identified individual. Instead, the complaint merely alleges Quigley “provided authorization” for Burns and Manjarrez “to participate in deceptive tactics to steer [Fidler] away from her home.” (Doc. 45 at 26). In addition, Amber LaMonte, a DCS psychologist, and Michael Faust, the Director of DCS, “ratified” the steps taken by Manjarrez and Burns. (Doc. 45 at 26). The complaint does not allege any facts regarding what LaMonte and Faust did that Plaintiffs believe constituted “ratification” of the behavior of others.
Plaintiffs allege DCS waited until April 3 to hold the meeting and take custody of E.F. because the DCS employees knew Dr. Christensen would be “on duty at PCH” on April 3. (Doc. 45 at 26). After being taken from his home, E.F. was taken to PCH and admitted by Dr. Christensen. (Doc. 45 at 26). Plaintiffs do not allege how long E.F. stayed at PCH but it appears he remained in DCS custody.
On April 8, 2020, the juvenile court ordered E.F. not be placed with Fidler. (Doc. 45 at 26). On April 15, Fidler provided the names of relatives who could take custody of E.F. but DCS “ignored” her recommendations. (Doc. 45 at 27). On April 16, 2020, Dr. Christensen “asked” Dr. Coffman “to follow the case . . . due to possible medical abuse.” Plaintiffs allege Dr. Coffman was already involved based on her attendance at the meeting with DCS employees in February 2020. Plaintiffs do not, however, explain what they mean when they allege Dr. Coffman was asked in April 2020 to “follow the case.” Plaintiffs simply allege Dr. Coffman later reviewed portions of E.F.'s medical records and sent a letter to DCS. That letter allegedly contained an inaccurate summary of E.F.'s medical history. (Doc. 45 at 27). On April 17, 2020, DCS placed E.F. with foster parents Jason and Leigh Ann Treguboff. (Doc. 45 at 29).
E.F.'s time with the Treguboffs was difficult. The Treguboffs have five of their own children and E.F. “experienced extreme bullying” by the Treguboffs' children. That bullying included the children calling E.F. “gay” and other names, “such as ‘dumb bitch.'” (Doc. 45 at 29). The children also “shamed” E.F. “for his urinary and defecation issues” and often “block[ed]” his “ability to get to the bathroom to clean up if he had an accident.” (Doc. 45 at 29). In addition, Leigh Ann Treguboff told E.F. and others “that E.F. was only in foster care because his mother was dangerous and that [Fidler] was only allowed supervised visits because she was so dangerous.” (Doc. 45 at 30).
The Treguboffs are not members of the Jewish faith and, for the entire time E.F. was with the Treguboffs, they did not allow E.F. “to attend religious services for the Jewish holidays.” (Doc. 45 at 29). They refused to allow a rabbi visit E.F. “to conduct religious rituals and customs.” And they “refused to allow E.F. to eat a Kosher diet.” (Doc. 45 at 29).
Plaintiffs allege that while E.F. was in their custody, the Treguboffs “provided false and inaccurate information and withheld pertinent information from E.F.'s medical team, DCS, and those involved in his care.” (Doc. 45 at 30). This included attempts by the Treguboffs to obtain an autism diagnosis despite E.F. not having autism. (Doc. 45 at 30).
Leigh Ann falsely told medical providers that E.F. was incapable of many daily tasks, such as “cutting his own food or showering independently.” (Doc. 45 at 30). The Treguboffs allegedly knew E.F. needed to wear glasses but Leigh Ann “unilaterally decided that E.F. did not need glasses.” Leigh Ann did, however, take E.F. for an eye exam approximately six months after he was placed in the Treguboffs' custody. (Doc. 45 at 31).
The juvenile court held an evidentiary hearing on August 19, 20, and September 14, 2020. (Doc. 45 at 27). Dr. Christensen and DCS investigator Lisa Burns testified during that hearing. The juvenile court did not issue a ruling and, at a subsequent conference, DCS moved to dismiss the proceedings. That request was granted and, on November 3, 2020, E.F. was returned to Fidler's custody.
On May 3, 2021, Plaintiffs' counsel attempted to serve a notice of claim regarding wrongful acts allegedly taken by state employees. (Doc. 76-1 at 10). That notice listed as addressees the following individuals and entities:
• Attorney General Mark Brnovich;
• DCS Investigator Lisa Burns;
• Dr. Christensen;
• DCS Case Manager Melinda Quigley;
• DCS Supervisor Francisco Saenz;
• DCS;
• DCS Supervisor Marisol Manjarrez;
• DCS Supervisor Kimmesha Edwards;
• DCS Psychologist Dr. Amber LaMonte;
• Independent social worker Drue Kaplan-Siekmann; and
• DCS Supervisor Bryan Adams.
The complaint identifies this defendant as “Sanez,” but the parties agree the proper name is “Saenz.”
The adequacy of that notice will be discussed in more detail in resolving a motion to dismiss. But the parties agree Plaintiffs attempted to serve the notice on the listed individuals and entities by delivering it to the DCS Central Office receptionist desk. The notice did not lead to a resolution of Plaintiffs' claims. In November 2021, Plaintiffs filed this suit in state court.
Plaintiffs alleged claims under federal law and, in February 2022, the case was removed to federal court. Plaintiffs amended their complaint in April 2022. The operative complaint contains sixteen separate claims: eight federal claims and eight state-law claims. Those claims are brought against various combinations of fourteen defendants. The specific allegations against each defendant will be discussed in context of the motions. In general, the defendants fall into four groups: 1) DCS employees; 2) Kaplan, the independent social worker who consulted with DCS; 3) Jason and Leigh Ann Treguboff, the foster parents; and 4) PCH and its employees, Dr. Christensen and Dr. Coffman.
Plaintiffs dismissed claim twelve, a federal claim against DCS, while this suit was in state court. Thus, there are seven federal claims and eight state-law claims pending.
Because DCS was dismissed, there are thirteen defendants remaining.
Defendant LaMonte did not file a motion to dismiss. (Doc. 66). Any amended complaint must reallege claims against LaMonte
ANALYSIS
As mentioned previously, the complaint contains extensive allegations regarding certain events only somewhat relevant to this suit but contains very few facts addressing the specific actions taken by each defendant. It is difficult to determine why Plaintiffs named as defendants some individuals because there are effectively no allegations against those individuals. While the complaint is significantly lacking, Plaintiffs' briefs are also inappropriate. Those briefs contain constant accusations of misconduct by Defendants and their counsel. While Plaintiffs may, eventually, be entitled to pursue some of their claims, they are not entitled to continue their highly inappropriate attacks on Defendants and their counsel.
For example, in a single brief Plaintiffs' counsel argues:
• All of defense counsel's arguments are “disingenuous”;
• Defense counsel presented a “deliberate (mis)statement of the law”;
• Defense counsel “ought to know” their description of a legal standard was incorrect;
• Defense counsel's argument is “insipid” and consists of “circular word salad [that] makes no sense”; and
• Defense counsel's argument is contrary to “something any law student knows.”(Doc. 101). Plaintiffs' counsel make similar allegations throughout all of their filings. (See, e.g., Doc. 76 at 14 (describing one argument as a “stunning example of willful blindness” and another argument as “plainly frivolous”)). Such attacks lessen the credibility of Plaintiffs' counsel. See Chambers v. Whirlpool Corp., 980 F.3d 645, 671 (9th Cir. 2020) (stating “parties to litigation should refrain from employing ad hominem rhetoric”). Moreover, the vast majority of Defendants' arguments are not “frivolous,” they are meritorious. In the future, all counsel and parties should focus on the merits of the issues and refrain from personal attacks.
Dismissal for failure to state a claim (or judgment on the pleadings) “is proper where there is either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal claim.” Hinds Invs., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011). To qualify as “sufficient,” the factual allegations need not be overly detailed. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). They must, however, be more than “naked assertion[s] devoid of further factual enhancement.” Id. And they must be more “than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
Most defendants argue both that the complaint lacks sufficient facts and that the complaint does not state viable legal theories. In general, it is the lack of adequate facts that dooms Plaintiffs' complaint. In analyzing the various motions, the Court will follow the parties' organization and analyze the four groups of Defendants separately.
I. DCS Employees
The largest group of defendants consists of the DCS employees involved in taking custody of E.F and in pursuing the child dependency proceedings. Plaintiffs allege both federal and state claims against the DCS employees. The federal claims fail for lack of sufficient facts supporting any viable legal theory. The state-law claims fail because Plaintiffs' notice of claim was improperly served and substantively inadequate.
A. Federal Claims
Plaintiffs allege five federal claims against Defendants Burns, Quigley, Manjarrez, Edwards, Saenz, and Adams (the “State Defendants”). In general, those claims are based on the State Defendants allegedly interfering with Plaintiffs' constitutionally protected right to familial relationships as well as violating E.F.'s right to practice his religion. It is not necessary to explore the exact claims because the complaint contains no meaningful allegations of involvement by most of the State Defendants. In fact, Plaintiffs have alleged practically no facts regarding five of the six State Defendants. The need to dismiss those five individuals (Quigley, Manjarrez, Edwards, Saenz, and Adams) is obvious. There are slightly more factual allegations involving Burns but even those allegations are insufficient.
Plaintiffs originally named Faust as a defendant on the federal claims. However, Plaintiffs state they “dismissed” the federal claims against Faust during a meet and confer. (Doc. 76 at 2).
1. Quigley
Quigley is identified as the “direct supervisor” of DCS Investigator Burns. (Doc. 45 at 26). Quigley allegedly “provided authorization” for Burns and Manjarrez “to participate in the deceptive tactics to steer [Fidler] away from her home” on April 3, 2020. Quigley then attended that meeting with Fidler and others. (Doc. 45 at 26). Finally, Quigley “failed to review the facts in the case and ensure [Burns] was following DCS procedure.” (Doc. 45 at 28). These facts are insufficient to state any plausible federal claim for relief. Engaging in unidentified “deceptive tactics” to steer Fidler away from her home to allow others to execute a juvenile court order does not allege a constitutional violation. And a conclusory allegation that Quigley failed to supervise Burns is not sufficient to state any constitutional claim against Quigley.
2. Manjarrez
Manjarrez is identified as a DCS “case manager” and she allegedly participated in the April 3 meeting with Fidler and others. In addition, on one date “Manjarrez indicated to [Fidler] that E.F. did not love her and that she should be happy that he did anything for her for Mother's Day.” (Doc. 45 at 27). That is the entirety of the allegations regarding Manjarrez's involvement. These allegations do not state any plausible federal claim for relief. That is, attending a meeting and telling Fidler that E.F. does not love her do not amount to violations of Plaintiffs' constitutional rights.
3. Edwards and Saenz
Edwards and Saenz are identified as the supervisor of Manjarrez. They allegedly “ratified” Manjarrez's unprofessional and incompetent conduct. (Doc. 45 at 27). There are no additional factual allegations involving Edwards and Saenz. A simple allegation that Edwards and Saenz “ratified” their subordinates' conduct is insufficient to state any claim that Edwards and Saenz violated Plaintiffs' constitutional rights.
4. Adams
Adams is identified as the supervisor of Edwards and Saenz. Adams allegedly “ratified” Edwards' and Saenz' “unprofessional and incompetent conduct.” (Doc. 45 at 27). Again, merely alleging a supervisor “ratified” a subordinate's conduct is insufficient to state a federal claim for relief against the supervisor.
5. Burns
The only one of the State Defendants against whom the complaint contains meaningful allegations is Burns. The complaint identifies Burns as the primary DCS investigator handling E.F.'s case. In conducting her investigation, Burns “failed to investigate E.F.'s matter [sic] with his primary care physician or any member of E.F.'s medical team.” (Doc. 45 at 28). Burns asked for E.F.'s medical records and apparently obtained them but she did not review them. Instead, Burns relied on “Dr. Christensen's opinion of E.F.'s medical issues.” Burns also engaged in “deceptive tactics to steer [Fidler] away from her home” to attend the meeting on April 3. (Doc. 45 at 26). While slightly more developed than the other defendants, these facts are insufficient to support any plausible federal claim for relief.
Plaintiffs' basic contention regarding Burns appears to be that Burns failed to conduct a sufficiently thorough investigation. That failure led to the seizure of E.F. as well as E.F. being unable to practice his religion while in the custody of foster parents. The complaint alleges Burns did not review all of E.F.'s medical records and she chose to rely on Dr. Christensen's opinion. But there are no allegations Burns knew or should have known Dr. Christensen's opinion was inaccurate. In addition, the complaint does not allege how Burns was involved, if at all, in obtaining the initial order from the juvenile court. Assuming Burns was involved, there are no allegations Burns made false statements to the juvenile court when obtaining that order. In short, the complaint alleges Burns' investigation was not as thorough as Plaintiffs believe it should have been and that Burns relied on Dr. Christensen's medical opinion. Plaintiffs do not explain how those actions constituted violations of their constitutional rights.
Given the lack of allegations establishing any unconstitutional conduct by the State Defendants, it is unlikely Plaintiffs will be able to amend to state viable federal claims.
However, out of an abundance of caution, the Court will permit an amendment. Should Plaintiffs choose to amend, they may not allege claims against supervisory defendants merely because they were supervisors or based on a single allegation that the supervisors “ratified” their subordinates' conduct. Instead, Plaintiffs must allege specific acts taken by each defendant that violated Plaintiffs' constitutional rights. Plaintiffs appear to base much of their complaint on the allegation that some of the State Defendants required Fidler attend a meeting on April 3. At present, however, there is no indication it could have violated Plaintiffs' constitutional rights to require her attendance at that meeting. In short, any amended complaint must contain significantly stronger and much more specific factual allegations supporting any federal claims.
B. State-Law Claims
Plaintiffs' claims nine, ten, and eleven are state-law claims against the State Defendants. The parties agree Plaintiffs could pursue these claims only if Plaintiffs served a notice of claim as required by A.R.S. § 12-821.01. All of the State Defendants with the exception of Faust argue the notice of claim was not properly served on them. And all the State Defendants argue the notice of claim was substantively deficient. Both arguments are correct.
Only Faust is named as a defendant in claim eleven. Because Plaintiffs state they dismissed Faust, claim eleven was dismissed as well. And adding to an already confusing situation, Plaintiffs' opposition to the motion to dismiss argues the notice of claim was properly served on Defendant Edwards. (Doc. 76 at 19). The complaint, however, does not allege any state-law claims against Defendant Edwards.
The facts necessary to resolve the adequacy of the notice of claim are not set forth in the complaint. Normally, disputes involving a notice of claim should be resolved via summary judgment, not a motion to dismiss. See, e.g., Jones v. Cochise Cnty., 187 P.3d 97, 100 (Ariz.Ct.App. 2008) (noting adequacy of notice of claim should be viewed as presenting summary judgment question). Here, however, Plaintiffs' opposition states it is “undisputed” how service was attempted and Plaintiffs filed a copy of the notice of claim in connection with opposing the motion to dismiss. (Doc. 76 at 19, 76-1 at 10). Thus, the disputes present pure questions of law and, while summary judgment still may have been the more appropriate vehicle, the issues are properly presented and can be resolved now.
1. Service was Improper
Arizona's notice of claim statute requires an individual who believes she has claims against a public entity or employee “file claims with the person or persons authorized to accept service for the public entity . . . or public employee as set forth in the Arizona rules of civil procedure within one hundred eighty days after the cause of action accrues.” A.R.S. § 12-821.01(A). Under this language, Plaintiffs “had to deliver a notice of claim to [each State employee] personally, an individual of suitable age and discretion residing with [each State employee], or [each State Employee's] appointed agent.” Simon v. Maricopa Med. Ctr., 234 P.3d 623, 629 (Ariz.Ct.App. 2010).
On May 3, 2021, Plaintiffs attempted to comply with the service requirement by delivering six copies of the notice of claim to the “Central Office DCS Receptionist Marisol Ceniceros.” (Doc. 76 at 20). Ceniceros accepted those six copies. (Doc. 76 at 20). The State Defendants argue Ceniceros lacked the authority to accept service on their behalf while Plaintiffs argue Ceniceros “had authority to accept service by operation of law.” (Doc. 76 at 20). The “operation of law” referenced by Plaintiffs appears to be their belief that Ceniceros had apparent authority to accept service of process.
According to Plaintiffs, Ceniceros had authority to accept service of process because “an agent is authorized to accept service if they have apparent authority to do so.” (Doc. 76 at 19). The parties agree service may be completed on an apparent agent. But Plaintiffs misapply the law regarding apparent authority. Under Arizona law, apparent authority must be “based on the principal's actions.” Stanwitz v. Reagan, 429 P.3d 1138, 1145 (Ariz. 2018). Therefore, the crucial inquiry is whether the principal, not the putative agent, “engage[d] in intentional or inadvertent conduct that allow[ed] a third party reasonably to conclude that the agent ha[d] actual authority.” Best Choice Fund, LLC v. Low & Childers, P.C., 269 P.3d 678, 687 (Ariz.Ct.App. 2011). The fact that a putative agent held herself out as having authority is not sufficient to establish apparent authority.
The State Defendants submitted declarations that they never authorized Ceniceros to accept service on their behalf. Plaintiffs do not claim otherwise. Thus, it is undisputed Ceniceros did not have actual authority to accept service of process.
Plaintiffs argue Ceniceros had apparent authority to accept service of process, but they do not point to actions by the State Defendants supporting this position. Instead, Plaintiffs point to the actions of Ceniceros. Plaintiffs argue Ceniceros was the DCS Receptionist and, if she was not authorized to accept service on behalf of others, she should have rejected the notices of claim. (Doc. 76 at 20-21). But looking to what Ceniceros did or did not do is not the proper approach. Again, the relevant inquiry is what the State Defendants did, not what Ceniceros did. Even more misleading actions by a putative agent than what occurred here have been found insufficient to support the existence of apparent authority. See, e.g., Crick v. City of Globe, 2022 WL 2066182, at *5 (D. Ariz. June 8, 2022) (“Numerous cases have established that there are few, if any, exceptions to the service requirement, even where the individual accepting service incorrectly informs the process server that he or she can accept service for the defendant.”). The notices of claim Plaintiffs attempted to serve on May 3, 2021, were not served properly and the State Defendants (with the exception of Faust) are entitled to dismissal of the state claims based on lack of service.
Plaintiffs argue they properly served notices of claim on March 15, 2022. (Doc. 76 at 22). But those notices are patently untimely given that E.F. was returned to Fidler's custody in November 2020 and the initial notice of claim was served in 2021. Plaintiffs do not explain how the Court could find adequate notices of claim served years after the statutory deadline.
2. Contents of Notice of Claim
The State Defendants argue, regardless of service issues, the notice of claim was substantively deficient. The notice of claim statute requires every notice contain “facts sufficient to permit the public entity [or] public employee to understand the basis upon which liability is claimed.” A.R.S. § 12-821.01(A). The parties have not cited any Arizona authority addressing this language in depth. However, Arizona courts have noted “[t]he purpose of the [notice of claim] statute is to provide the government entity with an opportunity to investigate the claim, assess its potential liability, reach a settlement prior to litigation, budget and plan.” Havasupai Tribe of Havasupai Rsrv. v. Arizona Bd. of Regents, 204 P.3d 1063, 1072 (Ariz.Ct.App. 2008). To investigate any claim and assess liability, a notice of claim must, at the very least, provide minimal facts identifying the actions taken by the state employee at issue. The exact level of detail a notice of claim must contain is unsettled but Plaintiffs' notice of claim fell well short of any plausible standard.
Plaintiffs' notice of claim provides a basic overview of E.F.'s medical history and Dr. Christensen's report to DCS in 2020. The notice states “DCS assigned Lisa Burns to investigate the case,” Burns did not speak to E.F.'s medical providers, and Burns relied on the report prepared by Kaplan. (Doc. 76-1 at 17). Burns is described as “conspir[ing] with Dr. Christensen to admit [E.F.] to Phoenix Children's to ‘experiment' with his medical care.” (Doc. 76-1 at 18). There is not a single sentence or word in the notice of claim identifying, even obliquely, any wrongful actions by the other State Defendants. That is, the notice of claim lists Quigley, Manjarrez, Saenz, Adams, and Faust on the first page as recipients of the notice, but there are no facts regarding these individuals' involvement. Plaintiffs' argument that the not-even-barebones notice of claim complied with the statutory requirement is unconvincing.
According to Plaintiffs, the “individual names appear on the face page of the” notice of claim, the notice contains a “detailed narrative describing the factual basis,” and the individuals “all have personal knowledge of the work they each performed regarding the events described in the notice of claim.” (Doc. 76 at 23). In other words, Plaintiffs believe listing individuals on the cover page was sufficient because everyone listed had “personal knowledge” of the wrongful actions at issue. Plaintiffs do not cite any authority in support of this theory, and it is incorrect.
The notice of claim statute requires every notice contain “facts sufficient to permit the . . . public employee to understand the basis upon which liability is claimed.” A.R.S. § 12-821.01(A). Reading the notice of claim, Quigley, Manjarrez, Saenz, Adams, and Faust would have no idea why Plaintiffs believed they were potentially liable. Plaintiffs' theory that a notice of claim is sufficient whenever recipients have “personal knowledge” of the events would allow a notice of claim to simply set forth the claimant's name and then include a sentence that the individuals who received the notice have “personal knowledge” of what they did wrong. This theory finds no support in the statutory language or existing caselaw. Cf. Backus v. State, 203 P.3d 499, 504 (Ariz. 2009) (contrasting higher requirement of “facts sufficient to permit [public employee] understand the basis on which liability is claimed” with lower standard of “facts supporting” the amount of damages sought). The notice of claim was patently defective regarding Quigley, Saenz, Manjarrez, Adams, and Faust. The state-law claims will be dismissed without leave to amend.
The notice of claim does contain a few statements regarding Burns' actions. However, because the notice of claim was not properly served on Burns, the Court need not resolve the adequacy of the factual details regarding Burns.
II. Kaplan
Plaintiffs allege three claims against Kaplan, two under federal law and one under Arizona law. The federal claims allege Kaplan violated Plaintiffs' constitutional rights by “unlawfully seizing E.F” and by “making misrepresentations and/or omissions to the court which were deliberate falsehoods and/or which demonstrated a reckless disregard for the truth.” The state-law claim is that Kaplan exercised “Gross Negligence in carrying out [her] duty to protect the legal rights of children and families.” None of these claims are viable.
A. Federal Law Claims
The entirety of the complaint's factual allegations involving Kaplan are the following. Kaplan “provided contract services for . . . DCS.” (Doc. 45 at 5). In February 2020, Kaplan “was retained by DCS to review E.F.'s medical records.” That month Kaplan attended a meeting with Dr. Christensen and others where E.F.'s situation was discussed. (Doc. 45 at 24). Kaplan then collected some but not all of E.F.'s medical records and Kaplan “lacked neutrality” in conducting her work. (Doc. 45 at 25). On March 19, 2020, Kaplan submitted her review of the medical records to DCS. That review included “a finding of conscious deception or intentional conduct on behalf of [Fidler], which are the hallmarks of Munchausen Syndrome by Proxy.” (Doc. 45 at 25).
Even viewed in the light most favorable to Plaintiffs, all that Kaplan is alleged to have done is attend a meeting, complete an allegedly incompetent review of some of E.F.'s medical records, and prepare a report finding the medical records contained the “hallmarks of Munchausen Syndrome by Proxy.” (Doc. 45 at 25). Plaintiffs allege these actions violated their constitutional rights, but Plaintiffs do not explain how. Plaintiffs appear to believe Kaplan's actions meant she was an “integral participant” in the eventual seizure of E.F. See Keates v. Koile, 883 F.3d 1228, (9th Cir. 2018) (noting § 1983 liability requires defendants have been “integral participants in the unlawful conduct”). But there are no factual allegations what role, if any, Kaplan's report had in the DCS proceedings.
Kaplan does not dispute Plaintiffs' position that she is a “state actor” subject to suit under 42 U.S.C. § 1983.
Plaintiffs admit DCS sought a court order to take custody of E.F. weeks after DCS received Kaplan's report. A juvenile court judge granted the order and DCS took custody of E.F. pursuant to that order. Plaintiffs have not alleged facts establishing Kaplan's report played a role in DCS' actions or in the juvenile court's decision to allow for the seizure of E.F. Without allegations establishing Kaplan's report impacted the DCS proceedings, Kaplan cannot possibly be liable for the eventual seizure of E.F.
Plaintiffs also claim Kaplan's report contained “deliberate falsehoods” that were submitted to the juvenile court. The complaint does not identify those falsehoods. In fact, Plaintiffs do not allege any underlying facts hinting Kaplan knew or should have known her report was false. Plaintiffs allege Kaplan's work was incompetent and she “lacked neutrality,” but if Plaintiffs believe there were “deliberate falsehoods” in Kaplan's report, they should have identified those. Even more importantly, the complaint does not allege Kaplan's report was submitted to the juvenile court and, if it was, whether Kaplan submitted her report to the juvenile court directly or whether DCS employees submitted Kaplan's report to the juvenile court. If Plaintiffs wish to pursue a federal claim against Kaplan for submitting false information to a court, Plaintiffs must allege, at the very least, Kaplan's report was actually submitted to a court.
B. State-Law Claim
The state-law claim against Kaplan for “gross negligence” requires that Kaplan owed Fidler a duty of care. “[W]hether a duty exists, is a matter of law for the court to decide.” Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 2007). The Arizona Court of Appeals held “in treating an alleged victim of abuse, a health care professional owes no duty of care to an alleged third-party abuser.” Ramsey v. Yavapai Fam. Advoc. Ctr., 235 P.3d 285, 295 (Ariz.Ct.App. 2010). The rule adopted by the Ramsey court was based on the need for health care professionals to treat victims of possible abuse “without fear of potential liability to suspected abusers.” Id.
The complaint explicitly identifies this claim as involving a duty to protect the legal rights of Fidler, not E.F. (Doc. 45 at 44-45).
More recently, the Arizona Court of Appeals addressed a negligence claim against a social worker who made a report to DCS on behalf of a treating physician. Bakker v. Banner Health Sys., 2019 WL 5390560, at *5 (Ariz.Ct.App. Oct. 22, 2019). The Bakker court concluded the social worker owed no duty of care to the parents suspected of committing the abuse. Id. The court relied on “the same significant policy considerations” as outlined in Ramsey, i.e. the need for individuals to make reports without fear of incurring liability to suspected abusers. Id. Kaplan argues a similar approach should be followed here and claims that her status as an independent social worker is effectively the same as the social worker who worked for the hospital in Bakker.
Plaintiffs do not offer any convincing way to distinguish the social worker in Bakker from the present situation. Plaintiffs stress Bakker involved a social worker who worked for a private hospital and Kaplan is an independent social worker hired by DCS. But Plaintiffs do not explain why that distinction should matter. The Arizona courts in Ramsey and Bakker adopted a view that health care professionals treating a child as well as social workers should be free to make reports of abuse without fear of becoming liable to the suspected abusers. The negligence claim against Kaplan will be dismissed without leave to amend.
III. Treguboffs
Plaintiffs allege one federal claim and three state-law claims against the Treguboffs. The federal claim is the Treguboffs violated Plaintiffs' “right to freedom of religion.” (Doc. 45 at 39). The state-law claims are defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress. None of these claims may proceed as currently pled.
A. Not State Actors
Plaintiffs allege a claim pursuant to 42 U.S.C. § 1983 against the Treguboffs for allegedly violating Plaintiffs' “right to Freedom of Religion, under the First Amendment” when they did not permit E.F. to “practice his level of observance of the Jewish faith.” (Doc. 45 at 39-40). “To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law.” Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1144 (9th Cir. 2021). The Treguboffs challenge the second element.
It is undisputed the Treguboffs are being sued based on their acts or omissions in their role of foster parents. It is well-established that “[m]erely serving as a foster parent does not transform a private party into a state actor.” Ismail v. Cnty. of Orange, 693 Fed.Appx. 507, 512 (9th Cir. 2017) (citing opinions by Eighth, Third, Eleventh, and Fourth Circuits). Therefore, Plaintiffs cannot pursue a § 1983 claim against the Treguboffs.
Plaintiffs argue against this conclusion by claiming the Treguboffs qualify as state actors because, at the relevant time, “Leigh Ann Treguboff was an Arizona . . . state employee.” (Doc. 100 at 8). This allegation is not in the complaint and, therefore, is an improper basis to avoid judgment on the pleadings. But even if the allegation were in the complaint, Plaintiffs have not identified any authority establishing that a foster parent who happens to work for the state will qualify as a state actor for actions taken in her role as foster parent. Plaintiffs' § 1983 claim against the Treguboffs fails. Plaintiffs will be granted leave to amend but, if they choose to do so, they must allege more than the simple fact that Leigh Ann Treguboff was a state employee.
B. Defamation
Fidler's defamation claim is based on Leigh Ann describing Fidler as “dangerous.”The Treguboffs seek judgment on the pleadings by arguing the statement that Fidler was “dangerous” “is merely an opinion” that cannot serve as the basis for a defamation claim. (Doc. 60 at 5).
The complaint also alleges Leigh Ann “implied that [Fidler] had some substance abuse issues.” (Doc. 45 at 30). Unlike the “dangerous” statement, the complaint does not allege what was actually said about Fidler and substance abuse. In addition, the complaint does not allege the third party who was present when Leigh Ann published this unidentified statement. Thus, the Court will focus on the “dangerous” comment which is clearly identified and was allegedly published to third parties.
“To establish defamation under Arizona common law, a publication must be false and must bring the defamed person into disrepute, contempt, or ridicule, or must impeach plaintiff's honesty, integrity, virtue, or reputation.” Rogers v. Mroz, 502 P.3d 986, 988, (Ariz. 2022). The first requirement of falsity requires the statement at issue be “susceptible to proof of truth or falsity.” Turner v. Devlin, 848 P.2d 286, 294 (Ariz. 1993). Thus, a statement that is “unmistakably [an] exaggeration” is unlikely to qualify as an actionable “assertion of fact.” Id. at 293. The Arizona Supreme Court addressed this requirement in a case involving a police officer's interview of a junior high student.
In Turner, a student told a school nurse that his stepfather had abused him. A police officer went to the school and interviewed the student. The school nurse observed portions of that interview and she later wrote a letter to the police department and others, “complaining that [the officer's] behavior was ‘rude and disrespectful' and asserting ‘his manner bordered on police brutality.'” Id. at 287. The officer sued the school nurse for defamation. The Arizona Supreme Court concluded the statements in the letter were not “factual connotations that are provable.” Id. at 292. In the Arizona Supreme Court's view, there were “no objective criteria that a jury could effectively employ to determine the accuracy of [the nurse's] statements.” Id. Therefore, the defamation claim failed as a matter of law.
The Treguboffs rely on Turner and argue describing Fidler as “dangerous” is not susceptible to factual proof. In the Treguboffs' view, if “rude and disrespectful” cannot be proven true or false, neither can “dangerous.” Plaintiffs' response does not articulate how the word “dangerous” is susceptible to being proven true or false. Instead, Plaintiffs simply argue it was “objectively false” to describe Fidler as dangerous. (Doc. 99 at 11). Plaintiffs certainly believe that, but they have not identified the “objective criteria” that can be used to assess that description. Turner v. Devlin, 848 P.2d 286, 292 (Ariz. 1993).
Plaintiffs also argue that “under Arizona law, a jury must decide if a statement is an objective fact or not.” (Doc. 99 at 9) (emphasis in original). Plaintiffs make this argument despite discussing in their brief the Arizona Supreme Court s opinion in T urner v. Devlin, 848 P.2d 286 (Ariz. 1993). In Turner, the court held the statements at issue were not subject to proof and “we do not believe there is an issue of interpretation for the jury.” 848 P.2d at 294. Given that statement, Plaintiffs' position that only a jury may assess this issue is incorrect.
Existing Arizona caselaw does not provide clear guidance on what types of statements are sufficiently susceptible to being proven true or false. Cases from other jurisdictions, however, provide some indication that “dangerous” is not a valid basis for a defamation claim. For example, in one case, a court concluded it was not a statement of provable fact to state “young, attractive Native women should be careful around” the plaintiff or that the plaintiff was a “predator.” Dossett v. Ho-Chunk, Inc., 472 F.Supp.3d 900, 914 (D. Or. 2020). Another defamation case involved a psychiatrist who the defendant had described as “Looney Tunes,” “crazy,” and “nuts.” Lieberman v. Fieger, 338 F.3d 1076, 1080 (9th Cir. 2003). Those statements were not provably true or false and could not support a defamation claim. As for the word “dangerous,” one court held describing the plaintiff as a “pain in the ass” or “dangerous” were “classic examples of loose, figurative speech that are suggestive of name calling, exaggeration, ridicule, or subjective impression-not assertions of provable facts.” Miller v. Watson, 2019 WL 1871011, at *10 (D. Or. Feb. 12, 2019). Similarly, another court held statements the plaintiff was “a ‘sex harasser,' a ‘dangerous harasser,' an ‘unstable person,' a ‘menace,' and ‘a danger to other employees'” were “opinions rather than statements of fact.” Byrnes v. Lockheed-Martin, Inc., No. C-04-03941 RMW, 2005 WL 3555701, at *7 (N.D. Cal. Dec. 28, 2005).
Even viewed in the light most favorable to Plaintiffs, a barebones allegation that Fidler was “dangerous” is not the type of statement that can be proven true or false. If statements that a plaintiff was “rude and disrespectful,” or a “predator,” or “crazy,” or “a danger to other employees” cannot be proven true or false, there is no way for a factfinder to evaluate the truthfulness of the alleged statement that Fidler was “dangerous.” The defamation claim will be dismissed.
Plaintiffs will be granted leave to amend this claim because it may be possible for Plaintiffs to allege additional facts or context that render the statement subject to proof as true or false. The full context is often crucial to assessing allegedly defamatory statements and, with additional context, the statement that Fidler was “dangerous” could perhaps be proven true or false.
C. Intentional Infliction of Emotional Distress
Plaintiffs' intentional infliction of emotional distress (“IIED”) claim is based on the Treguboffs allowing their other children to bully and call E.F. names, “expos[ing E.F.] to alcohol use,” not providing accurate medical information to E.F.'s providers, and not allowing E.F. to practice his religious faith. (Doc. 45 at 52).
A viable claim for intentional infliction of emotional distress requires sufficient allegations the Treguboffs' conduct was “capable of being characterized as ‘extreme and outrageous,'” the Treguboffs either intended to cause emotional distress or they recklessly disregarded “the near certainty that distress” would result from their conduct, and the Treguboffs' conduct “caused severe emotional distress.” Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 716 P.2d 1013, 1015-16 (Ariz. 1986). To qualify as “extreme and outrageous,” the conduct must have been “atrocious and beyond all possible bounds of decency.” Id. at 1016.
Here, some of Plaintiffs' allegations, on their own or in combination, would not be sufficient to plead an IIED claim. For example, exposing E.F. to alcohol use or not providing E.F.'s medical providers with the information Plaintiffs would have preferred are not nearly “extreme and outrageous” enough to support an IIED claim. Similarly, it is doubtful that allowing other children to call E.F. names or make fun of him would be “beyond all possible bounds of decency.” It is especially doubtful here because the complaint does not allege the extent of the Treguboffs' knowledge of the other children's behavior. In fact, the complaint specifically alleges E.F. did not approach the Treguboffs to complain about the other children's behavior. (Doc. 45 at 29). The only events that come close to stating a claim involve E.F.'s religious practices.
According to the complaint, the “Treguboffs refused to allow E.F. to attend religious services for the Jewish holidays,” they “refused to allow a Jewish Rabbi to see E.F.,” and they “refused to allow E.F. to eat a Kosher diet.” (Doc. 45 at 40). These allegations, on their own, do not plausibly show “extreme and outrageous” behavior, but with additional allegations Plaintiffs might be able to state a claim.
It is unlikely foster parents are required to accommodate all of the religious preferences or requirements of foster children. See Kelsi Brown Corkran, Free Exercise in Foster Care: Defining the Scope of Religious Rights for Foster Children and Their Families, 72 U. Chi. L. Rev. 325 (2005) (noting difficulties in accommodating religious preferences of foster children and their parents). Accommodating the religious needs of a child may present a significant burden. For example, under some approaches to kosher food, the Treguboffs would have been required to obtain kosher food, keep it separate from all other food, and serve E.F. using separate plates and separate utensils. See Ashelman v. Wawrzaszek, 111 F.3d 674, 675 (9th Cir. 1997) (“Kosher food must remain physically separate from nonkosher food, as must utensils and plates.”). It would not plausibly qualify as “extreme and outrageous” for the Treguboffs not to comply with extremely burdensome demands.
Additional factual allegations, however, may be sufficient to push the claim over the line of plausibility. If, for example, Plaintiffs can allege the Treguboffs refused to take very simple steps in an attempt to accommodate E.F.'s religious preferences, that may be enough to state a claim.
D. Negligent Infliction of Emotional Distress
Fidler's claim for negligent infliction of emotional distress is based on her “witnessing] injuries to her son while he was under the foster care of the Treguboffs.” (Doc. 45 at 52). Under Arizona law, “[t]he tort of negligent infliction of emotional distress requires a showing that the plaintiff witnessed an injury to a closely related person, suffered mental anguish manifested as physical injury, and was within the zone of danger so as to be subjected to an unreasonable risk of bodily harm created by the defendant.” Rodriguez v. Fox News Network, L.L.C., 356 P.3d 322, 325 (Ariz.Ct.App. 2015). The Treguboffs argue Fidler has not alleged she was “within the zone of danger” as required to state a claim. Fidler's response on this point is difficult to understand.
Fidler argues she has adequately alleged she was in the “zone of danger” because she is the mother of E.F. and she was in close contact with DCS, E.F., and the Treguboffs. (Doc. 99 at 16). Thus, Fidler argues she “feared what was going on and she witnessed her son's suffering.” (Doc. 99 at 16). This argument is not responsive to the “zone of danger” requirement.
The “zone of danger” requirement under Arizona law requires close physical proximity to the allegedly dangerous actions by defendant. See, e.g., State FarmMut. Auto. Ins. Co. v. Slayton, 2011 WL 5009522, at *3 (Ariz.Ct.App. Oct. 20, 2011) (noting parents were not in “zone of danger” when son was killed in accident two to three miles away). The physical proximity requirement becomes clear if one analyzes how Arizona law differs from other states. As explained by the United States Supreme Court, the “zone of danger” test as adopted in Arizona and elsewhere “limits recovery for emotional injury to those plaintiffs who sustain a physical impact as a result of a defendant's negligent conduct, or who are placed in immediate risk of physical harm by that conduct.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 548 (1994) (noting Arizona among jurisdictions that follow “zone of danger” test). By contrast, other states have adopted a more lenient “relative bystander” test. Id. That test allows “bystanders outside of the zone of danger to obtain recovery in certain circumstances for emotional distress brought on by witnessing the injury or death of a third party (who typically must be a close relative of the bystander) that is caused by the defendant's negligence.” Id. Arizona has not adopted this test.
Fidler was never in the “zone of danger” as that phrase is used under Arizona law. Fidler's claim for negligent infliction of emotional distress will be dismissed without leave to amend.
IV. PCH, Dr. Christensen, and Dr. Coffman
Plaintiffs allege five claims against Dr. Christensen and Dr. Coffman and a separate claim against PCH. The claims against the doctors consist of three § 1983 claims and two state-law claims. The sole claim against PCH is a state-law negligence claim based, almost exclusively, on the actions taken by the doctors. The briefing on the viability of these claims is incredibly confusing but the claims fail for relatively basic reasons. Therefore, the claims will be dismissed with leave to amend.
A. Section 1983 Claims Against Dr. Christensen and Dr. Coffman
Plaintiffs allege three § 1983 claims against Dr. Christensen and Dr. Coffman. First, the doctors violated Plaintiffs' “Right to Freedom of Association under the First Amendment and Due Process under the Fourteenth Amendment . . . [by] unlawfully seizing E.F.” (Doc. 45 at 32). Second, the doctors violated “Plaintiffs' right to Due Process under the Fourth and Fourteenth Amendments [by] making misrepresentations and/or omissions to the court.” (Doc. 45 at 32). And third, the doctors “are liable for conspiring to violate Plaintiffs' right to Due Process under the Fourth and Fourteenth Amendments to be free from misrepresentations and/or omissions to the court.” (Doc. 45 at 36).
At the outset, the complaint does not contain sufficient allegations establishing the doctors are “state actors” for purposes of suit under § 1983. The complaint alleges the doctors are employees of PCH, not the state. And while the complaint alleges the doctors receive some unidentified compensation from DCS, Plaintiffs do not cite nor is the Court aware of any authority that compensation alone would be sufficient to render the doctors state actors. Thus, the § 1983 claims must be dismissed.
But even assuming the doctors were somehow deemed “state actors,” the § 1983 claims fail for additional reasons. The first two § 1983 appear to significantly overlap and neither the complaint nor any of the briefing explains how they differ. Both claims are based on the doctors providing “false information” to DCS and testifying falsely before the juvenile court. (Doc. 45 at 32, 35). The complaint does not, however, identify the “false information” at issue. Instead, the complaint alleges, with no elaboration, Dr. Christensen “provided inaccurate medical information” during the meeting with DCS officials in February 2020. (Doc. 45 at 24). And Dr. Christensen “[d]uring his testimony under oath” made unidentified “statements which were false and/or demonstrated a reckless disregard for the truth.” (Doc. 45 at 35). Similarly, the complaint alleges, with no elaboration, Dr. Coffman “inaccurately summarized [E.F.'s] medical history” in a letter to DCS. (Doc. 45 at 27). To state a plausible § 1983 claim involving “false information,” Plaintiffs must at least identify the “false information” at issue.
Next, the complaint explicitly alleges some of the false statements by Dr. Christensen were made “[d]uring his testimony under oath.” (Doc. 45 at 35). Understandably, the doctors interpret that allegation as an attempt to sue Dr. Christensen based on what he said as a witness. The doctors argue they are “protected by absolute immunity for any testimony or evidence offered” during the juvenile court proceedings. (Doc. 58 at 9). In support of this, the doctors cite Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983). In that case the Supreme Court held witnesses have absolute immunity from damages for testimony in judicial proceedings. More recently, the Supreme Court noted “a trial witness has absolute immunity with respect to any claim based on the witness' testimony.” Rehberg v. Paulk, 566 U.S. 356, 367 (2012). See also PJ ex rel. Jensen v. Wagner, 603 F.3d 1182, 1196 (10th Cir. 2010) (noting doctor who testified in juvenile court proceedings was entitled to absolute immunity). Given that immunity, Plaintiffs cannot pursue any § 1983 claim based on in-court testimony. To the extent Plaintiffs are not suing the doctors for their testimony, neither the doctors nor the Court can discern what, exactly, Plaintiffs are basing their claims on. Neither of the first two § 1983 claims against the doctors are plausible.
The final § 1983 claim against the doctors is set forth as a separate claim for conspiring to violate Plaintiffs' rights. This conspiracy claim need not be discussed in detail because existing law does not recognize such a claim. “Conspiracy is not itself a constitutional tort under § 1983.” Lacey v. Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012). Instead of a stand-alone claim, allegations of conspiracy may “enlarge the pool of responsible defendants by demonstrating their causal connections to” an underlying violation of constitutional rights. Id. And “[c]onspiracy in § 1983 actions is usually alleged by plaintiffs to draw in private parties who would otherwise not be susceptible to a § 1 action because of the state action doctrine.” Id. For example, a private party who conspires with the police might be liable under § 1983. But even under a correct understanding of § 1983 conspiracy, Plaintiffs' current allegations are insufficient.
The complaint does not allege the doctors conspired with any state actors. Rather, the complaint alleges the doctors conspired amongst themselves. (Doc. 45 at 36-37). An agreement between two non-state actors does not become a viable § 1983 theory if that agreement is described as a “conspiracy.”
It seems unlikely Plaintiffs will be able to state § 1983 claims against the doctors but the Plaintiffs will be given one opportunity to do so. Should they choose to amend, Plaintiffs must allege facts establishing the doctors were state actors. Next, they must allege the exact unconstitutional acts taken by the doctors. If Plaintiffs believe the doctors made “false statements,” the complaint must not base liability on statements that are subject to absolute immunity. Finally, conspiracy should not be a separate claim but may be used to reach private parties who do not, themselves, qualify as state actors provided there are allegations of an agreement with state actors.
B. State-Law Claims
Plaintiffs allege two state-law claims against the doctors. First, Plaintiffs allege the doctors failed “to provide the minimum accepted standard of care while rendering medical services to E.F.” (Doc. 45 at 43). Second, Plaintiffs allege the doctors exercised “gross negligence” in carrying out their duty to protect the legal rights of children and families. (Doc. 45 at 44). Neither claim is plausible.
The parties describe the first claim as a “medical malpractice” or “medical negligence” claim. The doctors argue the allegations are insufficient to support such a claim because Plaintiffs have not alleged E.F. “suffered a medical injury as a result of [the doctors'] alleged negligence.” (Doc. 58 at 14). Plaintiffs respond that the “medical injury” occurred when “DCS removed E.F. from the care and custody of his mother.” (Doc. 101 at 19).
A claim for “medical negligence” requires allegations “[t]he health care provider failed to exercise that degree of care, skill and learning expected of a reasonable, prudent health care provider” and “[s]uch failure was a proximate cause of the injury.” A.R.S. § 12-563. Plaintiffs' attempt to bring this type of claim under the facts they have alleged presents a bewildering set of problems.
The complaint alleges Dr. Christensen treated E.F. on one occasion in 2017 and did not treat him again until April 3, 2020, when E.F. was seized pursuant to the juvenile court order. (Doc. 45 at 15). In January 2020, Dr. Christensen reviewed E.F.'s records and contacted DCS. In February 2020, Dr. Christensen attended a meeting with DCS officials and eventually testified before the juvenile court. As for Dr. Coffman, she never treated E.F. Dr. Coffman attended the meeting with DCS officials in February 2020 and later drafted a letter to DCS that contained an inaccurate summary of E.F.'s medical history. (Doc. 45 at 27). Based on these facts, the complaint alleges “Drs. Coffman and Christensen had a duty to provide the minimum accepted standard of care while rendering medical services to E.F.” (Doc. 45 at 43). But, given the facts alleged, there is no indication what “medical services” were rendered by the doctors.
Under Arizona law, “[w]hether an action sounds in medical malpractice depends upon whether the conduct causing the injury consisted of ‘health care, medical services, nursing services or other health-related services' as defined by” Arizona statute. Jeter v. Mayo Clinic Arizona, 121 P.3d 1256, 1274 (Ariz.Ct.App. 2005). Determining if actions qualify as “medical services” “depends on a number of factors,” such as whether the services “involved the exercise of professional judgment” or if the services at issue were something akin to failing “to keep the hospital premises and equipment properly maintained.” Id. Thus, a threshold issue for a medical malpractice claim is determining if the complained-of actions involved “the rendering of medical or health care-related services.” Id. If the complained-of actions did not involve such services, they cannot support a medical malpractice claim.
Plaintiffs' opposition to the doctors' motion does not argue they are basing the medical malpractice claim on the treatment received by E.F. in 2017 or 2020. Instead, Plaintiffs seem to argue Dr. Christensen was rendering “medical services” to E.F. when Dr. Christensen “called DCS to falsely assert [Fidler] was medically abusing her son.” (Doc. 101 at 19). A doctor's phone call to DCS is unlikely to qualify as the rendering of “medical services.” See Lee v. Detroit Med. Ctr., 775 N.W.2d 326, 334 (Mich. Ct. App. 2009) (holding an action against a doctor for reporting or failing to report suspected abuse “is entirely separate from an action against that doctor for medical malpractice in treating the child”). And Dr. Coffman preparing a summary of E.F.'s medical records and sending that summary to DCS also seems unlikely to qualify as the “rendering of medical or health care-related services.” Jeter, 121 P.3d at 1274. But based on the complaint, it is not even clear if it is Dr. Christensen's phone call or Dr. Coffman's summary that constituted the alleged medical negligence.
At times, Plaintiffs seem to allege all actions taken by the doctors constituted medical negligence. But some of the doctors' actions are protected and cannot be the subject of suit. For example, Plaintiffs cannot allege Dr. Christensen's testimony before the juvenile court constituted actionable malpractice and thereby avoid the application of absolute immunity. Before Plaintiffs may proceed on their malpractice claim, they will be required to clearly allege the “medical services” provided by Dr. Christensen and Dr. Coffman.
Plaintiffs' failure to identify the “medical services” at issue make it impossible to meaningfully evaluate whether Plaintiffs have alleged a type of “injury” recognized by Arizona's medical malpractice statutes. Arizona law requires the “injury” in a medical malpractice action be “based upon” a medical provider's “negligence, misconduct, errors or omissions, or breach of contract in the rendering of' medical services. A.R.S. § 12561(2). Arizona law further requires the provider's failure to exercise the appropriate degree of care be the “proximate cause of the injury.” A.R.S. § 12-563(2). Without knowing the “medical services” at issue, the Court cannot determine if the complaint adequately alleges a proximately caused injury. See Barrett v. Harris, 86 P.3d 954, 958 (Ariz.Ct.App. 2004) (stating proximate cause requires “a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred”). If they choose to amend, Plaintiffs must clearly identify the “medical services” as well as the injury they believe was proximately caused by the “medical services.”
Plaintiffs allege a claim for “gross negligence” against the doctors. (Doc. 45 at 44). The basis for this claim against the doctors is far from clear. But the allegations linked to this claim show the claim fails for reasons discussed earlier in this Order in different contexts. First, the complaint alleges the doctors “breached their duty to protect the legal rights of [Fidler].” (Doc. 45 at 44). But as discussed, Arizona law states has recognized “a health care professional owes no duty of care to an alleged third-party abuser.” Ramsey v. Yavapai Fam. Advoc. Ctr., 235 P.3d 285, 295 (Ariz.Ct.App. 2010). The doctors could not have been negligent regarding Fidler given that no duty existed. Next, the complaint alleges Dr. Christensen “acted with gross negligence . . . when he made representations to the court that were false.” (Doc. 45 at 45). Dr. Christensen is absolutely immune for statements he made as a witness.
Plaintiff will be granted leave to amend their “gross negligence” claim against the doctors but, should they choose to do so, Plaintiffs must allege sufficient facts establishing the doctors had a duty and that the behavior is not protected by absolute immunity.
C. Negligence by PCH
Finally, Plaintiffs allege a generic negligence claim against PCH. In seeking dismissal of this claim, PCH interpreted the claim as premised on the actions by Dr. Christensen and Dr. Coffman. (Doc. 58 at 16-17). PCH then argued if claims against the doctors were not adequately pled, the claim against PCH should be dismissed. In opposing the motion, Plaintiffs argue they have an independent negligence claim against PCH based on PCH “allowing Christensen to admit E.F. to PCH in April 2020, against [Fidler's] known instruction that Christensen never treat her son.” (Doc. 101 at 19). Plaintiffs' reimagined version of their claim is not in the complaint. The complaint identifies the claim against PCH as based on the deprivation “of familial relationships for extended periods of time.” (Doc. 45 at 53). The complaint contains no allegations that PCH's “negligence” in allowing Dr. Christensen to treat E.F. a single time on April 3, 2020, resulted in the deprivation of familial relationships. After all, at that point a juvenile court had already issued an order allowing DCS to take custody of E.F. The complaint does not contain any allegations stating a plausible claim for negligence against PCH. Plaintiffs will be granted leave to amend but, should they choose to do so, they must allege facts from which PCH can deduce the factual and legal basis for which it is being sued.
Accordingly, IT IS ORDERED the Motions to Dismiss and Motions for Judgment on the Pleadings (Doc. 47, 53, 58, 60, 61) are GRANTED.
IT IS FURTHER ORDERED Plaintiffs shall file an amended complaint, only as permitted by this Order, no later than November 16, 2022.