Desoto v. Mckay

MOTION to Dismiss Case , MOTION to Dismiss for Failure to State a Claim , MOTION to Strike 21 Amended Complaint

D. Ariz.July 8, 2016

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mark Brnovich Attorney General N. Todd McKay, #017369 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-7653 Facsimile: (602) 542-7644 N. Todd McKay@azag.gov Attorneys for Defendant IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA MARTA DeSOTO,Ph.D, a married woman, Plaintiff, vs. GREGORY McKAY, a married man, Defendant. No: CV-16-996-PHX-SPL DEFENDANT’S MOTION TO STRIKE, AND MOTION TO DISMISS, PLAINTIFF’S FIRST AMENDED COMPLAINT (Oral Argument Requested) Defendant Gregory McKay, as the Arizona Director of Child Safety being sued in his personal and individual capacity under 42 U.S.C. § 1983, through undersigned counsel hereby moves this Court to: A. Strike portions of Plaintiff’s First Amended Complaint pursuant to Fed.R.Civ.P. 12(f), B. Dismiss Plaintiff’s First Amended Complaint pursuant to Fed.R.Civ.P. 41(b) for its multiple failures to comply with Fed.R.Civ.P. 8(a)(2), Fed.R.Civ.P. 8(d)(1) and/or Fed.R.Civ.P. 10(b), and Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 1 of 14 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Dismiss Plaintiff’s First Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a Section 1983 claim, and under the doctrine of qualified immunity defense to Section 1983 claims with respect to the matters set forth in the First Amended Complaint.1 This Motion is supported by the following Memorandum of Points and Authorities. MEMORANDUM OF POINTS AND AUTHORITIES Instead of filing a straightforward First Amended Complaint in compliance with the rules, Plaintiff has filed a document that much more resembles a brief, improperly containing citations to case law, legal arguments, lengthy paragraphs and footnotes. Moreover, this is a 42 U.S.C. § 1983 action brought solely against Arizona Director of Child Safety Gregory McKay, in his personal and individual capacity; however the First Amended Complaint fails to state such a claim against Director McKay, and furthermore Director McKay is also shielded from suit and civil liability under the doctrine of qualified immunity defense to Section 1983 claims with respect to the matters set forth in the First Amended Complaint in the specific context of this case. 1 The Court is also herein directed to the prior Stipulation filed by the parties on May 31, 2016 (Doc. 18) noting, in relevant part, as follows: In conjunction with this Court’s recent assignment to this case on May 26, 2016 (Doc. 16), and this Court’s filing of its Order that same day discouraging the filing of motions to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure if any defect can be cured by filing an amended pleading (Doc. 17), it is hereby set forth and stipulated by the parties, through representative counsel undersigned, as follows: . . . 2. That subsequent to this Court’s recent assignment to this case on May 26, 2016 (Doc. 16), and this Court’s filing of its Order that same day discouraging the filing of motions to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure if any defect can be cured by filing an amended pleading (Doc. 17), the parties met and conferred in accordance therewith and have agreed and consented that the time for Defendant to respond to the Complaint shall be extended as Plaintiff shall have until on or before June 21, 2016 to file a First Amended Complaint, and Defendant shall have until on or before July 8, 2016 to respond to any such First Amended Complaint. Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 2 of 14 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As an initial matter, other than alleging that Plaintiff was married three years ago in July 2013, and was an independent contractor who provided psychological services on behalf of the Arizona Department of Child Safety, the First Amended Complaint also alleges, in relevant part, as follows: ¶2 Defendant McKay is employed by the Department of Child Safety (“DCS”) as its Director.2 . . . ¶15 In early February 2016, a local television station, KNXV, reported that it had notified DCS about (Plaintiff’s) marital relationship with Mr. Wideman and had provided documentation to DCS. ¶16 On February 10, 2016, (Plaintiff) was notified by DCS that her contract with DCS was terminated effective February 11, 2016 and that the “termination was in the best interest of the State.” A copy of the February 2016 media reporting by local ABC television station, KNXV, channel 15, as referenced in the First Amended Complaint, is attached hereto as Exhibit 1. When deciding a motion to dismiss, extrinsic evidence is generally not considered, as inquiry “is limited to the allegations in the complaint.” Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir.2008). Two exceptions to this rule are materials 2 It is also noted herein as part of this motion, and as a matter of public record, that Gregory McKay was appointed Director of the Arizona Department of Child Safety in February 2015, and the Department of Child Safety itself was established shortly before that as a separate Department with child safety as its primary purpose effective July 1, 2014. Prior to July 1, 2014, the Department of Child Safety had not been established as a separate and independent Department with respect to child safety and all child safety personnel were a part of the Arizona Department of Economic Security. Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 3 of 14 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 subject to judicial notice and materials attached to or referenced in the complaint. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.2001). The Court may also consider undisputed “matters of public record” that are judicially noticed. See Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001); Fed.R.Evid. 201(b). A. Motion to Strike under FRCP 12(f)/Motion to Dismiss under FRCP 41(b) A court may strike from a pleading any redundant, immaterial, impertinent, or scandalous matter. Fed.R.Civ.P. 12(f). In addition, pursuant to Fed.R.Civ.P. 8(a)(2), a complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” “Each allegation must be simple concise and direct.” Fed.R.Civ.P. 8(d)(1). And, a party must state its claims . . . in numbered paragraphs, each limited as far as practicable to a single set of circumstances.” Fed.R.Civ.P. 10(b). Fed.R.Civ.P. 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” The First Amended Complaint begins with an improper Introduction section from 1:2-3:4, containing nothing but immaterial case law citations and legal argument. As set forth in Farhang v. Indian Inst. of Tech., Kharagpur, 2010 WL 3504897, *1 (N.D.Cal. Sept. 7, 2010): Defendant Indian Institute of Technology, Kharagpur (“IIT”) moves to strike portions of the Third Amended Complaint (“TAC”) . . . I. MOTION TO STRIKE “The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). IIT moves to strike various portions of the TAC, . . . The court also strikes the following highlighted portions of the TAC as immaterial because they consist of legal argument, which does not belong in a complaint: paragraphs 6(c) through (e), paragraph 10 footnote 1, paragraph 26, paragraph 27(v), paragraph 32, paragraph 33(b), paragraphs 45(b) through (e), paragraphs 47(a), (c), and (d), paragraphs 48(b) and (c), paragraph 49, paragraph 60, paragraph 62, and paragraph 97. Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 4 of 14 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Introduction section also violates Fed.R.Civ.P. 8(a)(2). As set forth in Cox v. Mackowiak, 2013 WL 3388879, *1 (N.D.Ill. July 3, 2013): [t]he lengthy, rambling amended complaint violates Fed.R.Civ.P. 8(a)(2), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” In particular, the amended complaint contains numerous legal arguments and case citations, which are inappropriate in a complaint. The plaintiff should set forth only the basic facts indicating how the defendant violated his constitutional rights . . . The plaintiff should state only facts, leaving legal arguments and case law to briefs relating to motions to dismiss or for summary judgment. ¶4 of the “Factual Allegations” section of the First Amended Complaint then fails to comply with Fed.R.Civ.P. 8(a)(2), 8(d)(1) and Fed.R.Civ.P. 10(b). ¶4 of the First Amended Complaint also purports that Plaintiff worked with the Department of Child Safety as an independent contractor since 2009 even though as stated above the Department of Child Safety did not even exist until July 2014. ¶¶6-9, and footnotes 1 and 2, of the “Factual Allegations” section of the First Amended Complaint similarly fail to comply with Fed.R.Civ.P. 8(a)(2), 8(d)(1) and Fed.R.Civ.P. 10(b). ¶¶ 6-9, and footnotes 1 and 2, of the First Amended Complaint also address matters allegedly occurring between 1986 and 2010 long before the existence of the Department of Child Safety (in 2014), the appointment of Gregory McKay as Director of the Department of Child Safety (in 2015), and termination of Plaintiff’s independent contract with the Department of Child Safety (in 2016). ¶¶10-12 of the “Factual Allegations” section of the First Amended Complaint, contain nothing but immaterial and impertinent administrative matters before the Arizona Board of Psychologist Examiners allegedly occurring in 2011 and 2012 long before the existence of the Department of Child Safety (in 2014), the appointment of Defendant Gregory McKay as Director of the Department of Child Safety (in 2015), and the termination of Plaintiff’s independent contract with the Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 5 of 14 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Department of Child Safety (in 2016).3 As set forth in Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir.1993), rev'd on other grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994): “ ‘Immaterial’ matter is that which has no essential or important relationship to the claim for relief or the defenses being pleaded.” 5 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1382, at 706-07 (1990). “ ‘Impertinent’ matter consists of statements that do not pertain, and are not necessary, to the issues in question.” Id. at 711. Superfluous historical allegations are a proper subject of a motion to strike. See, e.g., Healing v. Jones, 174 F.Supp. 211, 220 (D.Ariz.1959). Accordingly, ¶¶10-12 of the “Factual Allegations” section of the First Amended Complaint should be stricken in their entirety pursuant to Fed.R.Civ.P. 12(f) due to being both immaterial and impertinent to either Director McKay in his personal capacity, or the termination of Plaintiff’s independent contract with the Department of Child Safety in February 2016. ¶14 of the “Factual Allegations” section of the First Amended Complaint then also fails to comply with Fed.R.Civ.P. 8(a)(2), 8(d)(1) or Fed.R.Civ.P. 10(b). ¶14 of the First Amended Complaint also addresses nothing but immaterial and impertinent administrative matters before the Arizona Board of Psychologist Examiners again, this time allegedly occurring in 2014, long before the appointment of Defendant Gregory McKay as Director of the Department of Child Safety (in 2015) and the termination of Plaintiff’s independent contract with the Department of Child Safety (in 2016). Accordingly, ¶14 of the “Factual Allegations” section of the First Amended Complaint should be stricken in its entirety pursuant to Fed.R.Civ.P. 12(f) due to being both immaterial and impertinent to either Director McKay in his personal capacity, or the termination of Plaintiff’s independent contract with the Department of Child Safety in February 2016. 3 ¶12 of the First Amended Complaint also purports that another psychologist was also working with the Department of Child Safety as an independent contractor in 2012 even though as stated above the Department of Child Safety did not even exist until July 2014. Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 6 of 14 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lastly, ¶¶18-19 of the “Count One” section of the First Amended Complaint then also fails to comply with Fed.R.Civ.P. 8(a)(2), 8(d)(1) and Fed.R.Civ.P. 10(b). Accordingly, for the reasons set forth above, the Introduction section of the First Amended Complaint, from 1:23-3:4, as well as ¶¶10-12 and ¶14 of the “Factual Allegations” section of the First Amended Complaint, should be stricken in their entirety pursuant to Fed.R.Civ.P. 12(f). Moreover, Plaintiff’s First Amended Complaint should also be dismissed pursuant to Fed.R.Civ.P. 41(b), for its additional numerous and extensive failures to comply with Fed.R.Civ.P. 8(a)(2), Fed.R.Civ.P. 8(d)(1) and/or Fed.R.Civ.P. 10(b). B. Motion to Dismiss under FRCP 12(b)(6)/Motion to Dismiss based on Qualified Immunity The First Amended Complaint should also be dismissed in that it fails to state a Section 1983 claim against Director McKay, and furthermore Director McKay is also shielded from suit and civil liability under the doctrine of qualified immunity defense to Section 1983 claims with respect to the matters set forth in the First Amended Complaint in the specific context of this case. It is well-settled that “where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.” Dove v. Fordham University, 56 F.Supp. 330, 335 (S.D.N.Y. 1999); see also, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)(“A plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of his civil rights. Liability under § 1983 must be based on the personal involvement of the defendant”). Furthermore, to survive dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief above the speculative Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 7 of 14 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a complaint need not contain detailed factual allegations . . . it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. When a complaint does not “permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal quotation omitted). In contrast to the above requirements that a plaintiff “allege facts that show an individual was personally involved” and “factual content that permits the court to infer more than the mere possibility of misconduct”, the First Amended Complaint merely vaguely alleges, in relevant part, as follows in ¶16: 16. . . . Plaintiff is informed and believes and therefore alleges that Defendant McKay participated in, directed, set in motion, acquiesced in, was consulted about, participated in, knew of, ratified or approved the termination of Plaintiff’s contractual relationship with DCS and therefore had direct personal participation in the deprivation of Plaintiff’s constitutional rights of freedom of intimate association, Fourteenth Amendment liberty interest in the right to marry and right of privacy. The above set forth language in ¶16 of the First Amended Complaint does not allege facts that show that Director McKay was personally involved in the deprivation of her civil rights, nor does the above set forth language in ¶16 of the First Amended Complaint permit this Court to infer more than the mere possibility that he may have been. Accordingly, for this additional reason, Director McKay’s motion to dismiss the First Amended Complaint should be granted. Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 8 of 14 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lastly, government officials who perform discretionary functions are entitled to the defense of qualified immunity, which shields them from suit as well as liability for civil damages, if their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court regards qualified immunity as the norm because “[a]s the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986)(emphasis added). Questions of qualified immunity involve a two-pronged inquiry. Tolan v. Cotton, 134 S.Ct. 1861, 1865 (2014). The first prong is whether the facts, taken in the light most favorable to the party asserting injury, show the officer's conduct violated a federal right. Id. The second prong is whether the law was clearly established. Id. at 1866. With respect to this second prong, as stated by the U.S. Supreme Court in Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011)(emphasis added): A Government official's conduct violates clearly established law when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every “reasonable official would have understood that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate. See ibid.; Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). “This inquiry turns on the objective legal reasonableness of the action....” Pearson v. Callahan, 555 U.S. 223, 244 (2009)(emphasis added). “If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004)(emphasis Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 9 of 14 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 added). Moreover, this inquiry “ ‘must be undertaken in light of the specific context of the case, not as a broad general proposition.’ ” Id.(emphasis added). Here, the First Amended Complaint does not come anywhere close to meeting the above referenced “clearly established violation of federal law” threshold even if it had contained sufficient factual content to show that “Director McKay was personally involved in the deprivation of Plaintiff’s civil rights” (which again the First Amended Complaint did not show). Rather, Plaintiff here had her independent contract with the Arizona Department of Child Safety terminated as set forth in media reporting, attached hereto as Exhibit 1, stating such things, inter alia, as: • A headline stating “AZ Department of Child Safety cancels contract with psychologist married to convicted murderer” • What state officials didn’t know is that DeSoto was married to a convicted child murderer. A man she met while working in the state prison system. • An inmate she’s been trying to get released for years so he can move into her home with her two children. • “The facts in this case defy common sense,” said Governor’s Office spokesman Daniel Scarpinato, “and we are pleased to hear this individual’s business relationship with the state has been terminated thanks to ABC15’s thorough reporting.” • The agency making the decision less than two days after ABC15 contacted the department with information and records detailing DeSoto’s marriage to a murderer whose case made national headlines. Here, there was no “clearly established” federal precedent, beyond debate, that in February 2016 every Director of Child Safety across the nation would have understood that making a business decision on behalf of their State Department of Child Safety to terminate an independent contractor/psychologist’s independent contract in the specific context of this case would be a constitutional violation. Indeed, the First Amended Complaint itself makes this point in that rather than pointing to any such “clearly established federal precedent, beyond debate” with respect Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 10 of 14 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to the specific context of this case, the Introduction section from 1:2-3:4 of the First Amended Complaint instead attempts to make a novel and unique argument by analogy citing to a 2014 case involving same sex marriage/State prohibition of marriage, a 1984 case regarding admitting women into a young men’s civic and service organization, a 1978 case involving the right to marry of persons with child-support obligations, a 2003 case involving consensual sodomy, a 1967 case involving interracial marriage/State prohibition on marriage, and a 1996 case involving termination of parental rights. Here, none of the above cases cited to in the Introduction section from 1:2-3:4 of the First Amended Complaint provide “clearly established” federal precedent, beyond debate, that in February 2016 every Director of Child Safety across the nation would have understood that, based on the above cases, making a business decision on behalf of the Department of Child Safety to terminate an independent contractor/psychologist’s independent contract in the specific context of this case would be a constitutional violation. None of the above cases cited to in the Introduction section from 1:2-3:4 of the First Amended Complaint involve any business decisions being made by any Department of Child Safety in the specific context of being the State agency charged with child safety as its primary purpose, and the State agency primarily responsible for prioritizing and protecting the safety of at-risk children. For example, ¶5 of the First Amended Complaint references a copy of Plaintiff’s acceptance of the contract offer being attached as Exhibit 1 thereto, however as part of that same contract offer the terms of the contract expressly stated that under such contract (emphasis added): 2.0 PURPOSE 2.1 The purpose of this service is to: . . . 2.1.6 Provide Expert witness testimony. . . . 3.0 SERVICE DESCRIPTION Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 11 of 14 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . . 3.2 Actual Service Description: This service may include the following: 3.2.1 Assessment, evaluation, testing, consultation, medication review, adjustment, monitoring, expert witness, and other professional services, which may include expert witness testimony from a Psychiatrist or licensed Psychologist. . . . 7.0 CODE OF CONDUCT. 7.1 The Contractor shall avoid any action that might create or result in the appearance of having . . . 5. . . . otherwise impeded the efficiency, authority, actions, policies, or adversely affect the confidence of the public or integrity of the State. See copy of such referenced contract language collectively attached hereto as Exhibit 2. Part of the business decision in the specific context of this case would therefore necessarily involve consideration of both the potential effect of these widespread media reports on (i) Plaintiff’s credibility, impeachability, effectiveness, etc. as a testifying expert witness both on behalf of DCS as the State agency established to protect the safety of at-risk children, as well as the best interests and protection and safety of these at-risk children themselves; as well as (ii) matters related to the confidence of the public or integrity of the State with respect to DCS as the State agency established with its primary responsibility being to protect the safety of at-risk children, and matters related to the ability of DCS to most effectively fulfill this responsibility to best protect the safety of at-risk children. In contrast, such a business decision in the specific context of this case is not applicable to any of the above cases cited to in the Introduction section from 1:2-3:4 of the First Amended Complaint. More specifically, again, every Director of Child Safety across the country would not have clearly understood, beyond debate, Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 12 of 14 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that making such a business decision in the specific context of this case would be a constitutional violation based on “clearly established” federal precedent as set forth in any of the above cases cited to in the Introduction section from 1:2-3:4 of the First Amended Complaint. Accordingly, this type of novel and unique argument by attenuated analogy to the above cases cited to in the Introduction section from 1:2-3:4 of the First Amended Complaint is wholly inapplicable and does not come close to meeting the above- referenced “clearly established violation of federal law” threshold to subject a governmental official (Director of Child Safety) such as Director McKay to liability, or indeed even the burdens of litigation, in the face of a qualified immunity defense in the specific context of this case. Therefore Director McKay is entitled to dismissal under the doctrine of qualified immunity defense to Section 1983 claims with respect to the matters set forth in the First Amended Complaint in the specific context of this case. RESPECTFULLY SUBMITTED this 8th day of July, 2016. Mark Brnovich Attorney General /s/ N. Todd McKay N. Todd McKay Assistant Attorneys General Attorneys for Defendant Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 13 of 14 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on the 8th day of July 2016, I filed the foregoing document with the United States District Court using the CM/ECF System for filing AND transmitted a Notice of Electronic Filing to the following CM/ECF registrant(s): Tod F. Schleier Bradley H. Schleier SCHLEIER LAW OFFICES, P.C. 3101 N. Central Avenue Suite 1090 Phoenix, Arizona 85012 Attorneys for Plaintiff /s/ Rebecca Warinner Case 2:16-cv-00996-SPL Document 23 Filed 07/08/16 Page 14 of 14 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 1 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 2 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 3 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 4 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 5 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 6 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 7 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 8 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 9 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 10 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 11 of 12 Case 2:16-cv-00996-SPL Document 23-1 Filed 07/08/16 Page 12 of 12