Steven Tucker v. Adoc

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN LEE TUCKER, a married man; No. 19-15873

GAIL TUCKER,

D.C. No. 4:17-cv-00192-CKJ

Plaintiffs-Appellants,

v. MEMORANDUM*

ARIZONA DEPARTMENT OF

CORRECTIONS; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Cindy K. Jorgenson, District Judge, Presiding

Submitted July 14, 2020**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

Arizona state parolee Steven Lee Tucker and his wife, Gail Tucker, appeal

pro se from the district court’s judgment dismissing their 42 U.S.C. § 1983 action

alleging federal and state law claims. We have jurisdiction under 28 U.S.C.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

§ 1291. We review de novo a dismissal under Federal Rule of Civil

Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We affirm

in part, reverse in part, and remand.

The district court properly dismissed plaintiffs’ claims against the State of

Arizona, the Arizona Department of Corrections, and the officers in their official

capacities as barred by the Eleventh Amendment. See Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“[I]n the absence of consent a suit

in which the State or one of its agencies or departments is named as the defendant

is proscribed by the Eleventh Amendment.”); Jackson v. Hayakawa, 682 F.2d

1344, 1350 (9th Cir. 1982) (“Eleventh Amendment immunity extends to actions

against state officers sued in their official capacities because such actions are, in

essence, actions against the governmental entity[.]”).

The district court properly dismissed plaintiffs’ claims against Ryan in his

individual capacity because plaintiffs failed to allege facts sufficient to show that

Ryan personally participated in or caused the alleged violations. See Jones v.

Williams, 297 F.3d 930, 934 (9th Cir. 2002) (liability under § 1983 requires

personal participation by the defendant in the alleged rights deprivation); see also

Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (elements for supervisory

liability under § 1983).

The district court properly dismissed plaintiffs’ state law claims because

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plaintiffs failed to file a required Notice of Claim within 180 days after their causes

of action accrued, and plaintiffs failed to allege facts sufficient to show that

equitable tolling applies. See Ariz. Rev. Stat. § 12-821.01(A) (“Any claim that is

not filed within one hundred eighty days after the cause of action accrues is barred

and no action may be maintained thereon.”); Simon v. Maricopa Med. Ctr., 234

P.3d 623, 630 (Ariz. 2010) (requiring “strict compliance” with the statute); Little v.

State, 240 P.3d 861, 867 (Ariz. Ct. App. 2010) (equitable tolling applies only in

“extraordinary circumstances” (citation and internal quotation marks omitted)).

The district court properly dismissed plaintiffs’ claims in counts 10 through

13 on the basis of qualified immunity because, at the time of the search in 2015, it

would not have been clear to every reasonable prison official that the search was

unlawful under the circumstances. See Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (per curiam) (discussing qualified immunity and explaining that a “clearly

established right is one that is sufficiently clear that every reasonable official

would have understood that what he is doing violates that right” and “existing

precedent must have placed the statutory or constitutional question beyond debate”

(citations and internal quotation marks omitted)).

The district court properly dismissed plaintiffs’ claims in counts 20 through

26, and 28 because the officers are entitled to absolute immunity for the imposition

of the challenged parole conditions. See Thornton v. Brown, 757 F.3d 834, 840

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(9th Cir. 2014) (parole officers are entitled to absolute immunity against claims for

damages arising from imposition of parole conditions).

To the extent plaintiffs alleged § 1983 negligence and gross negligence

claims on the basis of conduct beyond those encompassed by plaintiffs’ Fourth

Amendment claims, the district court properly dismissed such claims. See

Williams v. California, 764 F.3d 1002, 1009 (9th Cir. 2014) (for a § 1983 claim, a

plaintiff must plead that the defendant deprived the plaintiff of “rights secured by

the Constitution or federal statutes”).

The district court did not abuse its discretion by dismissing the foregoing

claims without leave to amend because amendment would have been futile. See

Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (setting forth standard of

review and factors for determining whether to grant leave to amend).

The district court dismissed plaintiffs’ false arrest and imprisonment claims

in counts 15 through 17 because the officers reasonably believed Mr. Tucker was

in violation of his parole. However, plaintiffs alleged that Mr. Tucker was not

subject to parole condition 13(F) and that the officers were aware of this when they

arrested him for violation of this condition. These allegations are sufficient to state

a claim. See United States v. Rabb, 752 F.2d 1320, 1324 (9th Cir. 1984) (a parole

officer may arrest a parolee if the parole officer “reasonably believes [the] parolee

is in violation of his parole”), abrogated in part on other grounds by Bourjaily v.

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United States, 483 U.S. 171 (1987); see also Hebbe, 627 F.3d at 342 (explaining

that “where the petitioner is pro se, particularly in civil rights cases, [courts should]

construe the pleadings liberally and . . . afford the petitioner the benefit of any

doubt” (citation and internal quotation marks omitted)). We therefore reverse the

judgment as to plaintiffs’ claims in counts 15 through 17 only and remand for

further proceedings.

The district court did not err by denying plaintiffs’ request for leave to attach

the audio recording as an exhibit to their response to defendants’ motion to

dismiss. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d

1542, 1555 n.19 (9th Cir. 1989) (“Generally, a district court may not consider any

material beyond the pleadings in ruling on a Rule 12(b)(6) motion.”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Plaintiffs’ motion to strike (Docket Entry No. 22) is denied.

The parties shall bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.

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