for a right to be clearly established there does not need to be a case directly on point, but “‘existing precedent must have placed the statutory or constitutional question beyond debate.’”
How later courts described this case
- for a right to be clearly established there does not need to be a case directly on point, but “‘existing precedent must have placed the statutory or constitutional question beyond debate.’”
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANGEL GOFF, FKA Angel Kraft, No. 18-17216
Plaintiff-Appellee, D.C. No.
2:17-cv-01623-JJT-DMF
v.
JUAN IGNACIO RAMIREZ, Jr., MEMORANDUM*
Defendant-Appellant,
and
STATE OF ARIZONA; CARSON
MCWILLIAMS; BERRY LARSON;
CHARLES L. RYAN,
Defendants.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted December 4, 2019
San Francisco, California
Before: CALLAHAN and BADE, Circuit Judges, and BOUGH,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Angel Goff, a transgender woman in the custody of the Arizona Department
of Corrections (“ADOC”), filed suit in the district court against corrections officer
Juan Ignacio Ramirez, Jr. and others asserting civil rights claims under 42 U.S.C.
§ 1983 and state tort claims. Goff’s allegations are based on Ramirez’s conduct
between the latter part of 2014 and mid-2016. Ramirez appeals the district court’s
denial of his motion to dismiss. Ramirez argues that he has statutory immunity
from Goff’s tort claims under Ariz. Rev. Stat. § 31-201.01(F), and that he has
qualified immunity from Goff’s § 1983 claims.
We have jurisdiction under 28 U.S.C. § 1291 and the collateral review
doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524-25, 530 (1985); Ashcroft v.
Iqbal, 556 U.S. 662, 672 (2009) (citing Behrens v. Pelletier, 516 U.S. 299, 307
(1996)). We review de novo, Hernandez v. City of San Jose, 897 F.3d 1125, 1132
(9th Cir. 2018), and affirm.
I.
The district court properly denied Ramirez’s motion to dismiss the tort
claims against him individually. We are not persuaded by Ramirez’s argument that
he is entitled to statutory immunity under Arizona law. Ramirez argues that Goff’s
state tort claims against him are barred by Ariz. Rev. Stat. § 31-201.01(F), which
provides that “[a]ny and all causes of action that may arise out of tort caused by the
director, prison officers or employees of the department, within the scope of their
2
legal duty, shall run only against the state.” Although, as Ramirez argues, the
phrase “any and all” is expansive, see In re Estate of Lamparella, 109 P.3d 959,
964 (Ariz. Ct. App. 2005), it is limited by the phrase “within the scope of their
legal duty,” Ariz. Rev. Stat. § 31-201.01(F). The statute “does not limit [a]
plaintiff’s right to sue individual employees for actions taken outside the scope of
their legal duty.” Howland v. State, 818 P.2d 1169, 1173 (Ariz. Ct. App. 1991).
Ramirez’s alleged conduct, “grabbing Ms. Goff’s breasts and other body
parts during ‘pat downs’ and forcing himself against her for his own sexual
pleasure” and “forcing Ms. Goff to perform oral sex on him” was “outside the
scope of [his] legal duty” as a corrections officer. See id.
Ramirez cites Arizona Department of Corrections Order (“DO” or
“Department Order”) 708, which governs searches, and argues that because “part
of the tortious conduct . . . occurred during ‘pat downs,’” it was within the scope of
his legal duties. See DO 708, § 1.6. However, another Department Order strictly
prohibits “sexual harassment and any sexual contact or conduct between staff and
inmates.” DO 125, § 1.2. Therefore, we reject Ramirez’s argument that his
alleged sexual contact with Goff was within the scope of his legal duties.
Ramirez’s assertion that certain allegations in the second amended complaint
conceded that his conduct was “within the scope of [his] legal duty” for purposes
of section 31-201.01(F) is unpersuasive because the allegations are reasonably
3
viewed as pleading Arizona’s vicarious liability and Ramirez’s individual liability
in the alternative.
II.
The district court properly denied Ramirez’s assertion that he was entitled to
qualified immunity from Goff’s § 1983 claims alleging that Ramirez “grabb[ed]
Ms. Goff’s breasts and other body parts during ‘pat downs’ and forc[ed] himself
against her for his own sexual pleasure.”1 When a defendant presents a qualified
immunity defense in a motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), “dismissal is not appropriate unless we can determine, based on the
complaint itself, that qualified immunity applies.” Groten v. California, 251 F.3d
844, 851 (9th Cir. 2001).
Qualified immunity protects government officials acting in their official
capacities from civil liability unless their conduct violates “clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Goff asserts that Ramirez
engaged in excessive force in violation of the Fourth and Eighth Amendments.
The allegations that Ramirez grabbed Goff’s breasts and other body parts
during non-routine “pat downs,” forced himself against her for his own sexual
1
Ramirez does not argue that he is entitled to qualified immunity from Goff’s
claim that he forced her to perform oral sex on him.
4
pleasure, and that during each encounter Ramirez’s conduct grew more “aggressive
and violent” are sufficient to state a claim that Ramirez violated Goff’s Eighth
Amendment rights. See Schwenk v. Hartford, 204 F.3d 1187, 1197-98 (9th Cir.
2000).
We are unpersuaded by Ramirez’s argument that the law was not clearly
established at the time of the non-routine “pat downs” and unsolicited physical
contact such that a reasonable corrections officer would not have known that his
actions were unlawful under the Eighth Amendment. See White v. Pauly, ___
U.S. ___, 137 S. Ct. 548, 551 (2017) (for a right to be clearly established there
does not need to be a case directly on point, but “‘existing precedent must have
placed the statutory or constitutional question beyond debate.’”) (quoting Mullenix
v. Lewis, 577 U.S. ___, 136 S. Ct. 305, 308 (2017)). We agree with the district
court that our decision in Schwenk clearly established an inmate’s Eighth
Amendment right not to be sexually abused by a corrections officer who grabbed
the inmate’s breasts and other body parts and forced himself against the inmate in a
sexual manner regardless of the gender of the officer or the inmate. 204 F.3d at
1197-98. Taking Goff’s allegations as true, no reasonable corrections officer could
have thought that engaging in unsolicited and forcible sexual contact with an
inmate was reasonable under the circumstances.
Additionally, we agree with the district court that Ramirez’s assertion of
5
qualified immunity was based on an inaccurate characterization of Goff’s
allegations as describing routine pat down searches and an inaccurate identification
of the Fourth Amendment right at issue.2 The district court’s order did not
specifically address whether the allegations stated an excessive force claim under
the Fourth Amendment or whether it was clearly established that Ramirez’s alleged
conduct would have violated the Fourth Amendment. However, dismissal of the
Fourth Amendment claim is inappropriate because, based on the second amended
complaint itself, we cannot determine that qualified immunity applies. See Groten,
251 F.3d at 851.
AFFIRMED.
2
Ramirez cited cases that involved routine searches and considered whether an
inmate had a right to privacy under the Fourth Amendment. See Somers v. Thurman,
109 F.3d 614, 617-20 (9th Cir. 1997); Grummet v. Rushen, 779 F.2d 491, 493, 495-
96 (9th Cir. 1985). Goff, however, asserts an excessive force claim under the Fourth
Amendment.
6