Petition for Writ of Certiorari — Rafael Cezar Danam, Petitioner v. Arizona Board of Education

Supreme Court briefJul 13, 2020

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INDEX OF APPENDICES

Appendix A: Decision of the Appeals Court of Arizona-Division One

Appendix B: Decision and Orders of Superior Court of Arizona

Appendix C: Decision and Orders of Arizona Board of Education

Appendix D: Review of litigation in the U.S. District Court of Arizona

Appendix E: Request for Review to Arizona Supreme Court

Appendix F: Arizona Supreme Court Denial Order

APPENDIX A: Decision of the Appeals Court of Arizona-Division One

APPENDIX A

*tl.

I/*

NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

Arizona Court of Appeals

Division One

RAFAEL CEZAR DANAM,

Plain tiff/Appellan t,

ARIZONA BOARD OF EDUCATION,

Defendan t/Appellee.

No. 1 CA-CV 18-0668

FILED 10-31-2019

Appeal from the Superior Court in Maricopa County

No. LC2018-000093-001

The Honorable Patricia A. Starr, Judge

AFFIRMED

COUNSEL

Rafael Cezar Danam, N. Las Vegas, NV

Plain tiff/Appellan t

Arizona Attorney General's Office, Phoenix

By Kim S. Anderson

Counsel for Defendant/Appellee

DANAM v. AZ BOARD OF EDUCATION

Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which

Presiding Judge Kenton D. Jones and Judge James B. Morse Jr. joined.

JOHNSEN, Judge:

Rafael Cezar Danam appeals from the superior court's

judgment affirming a decision by the Arizona State Board of Education

("Board") to revoke his teaching certificates and to notify other states of that

revocation. We conclude the Board's decision was supported by substantial

evidence and was not contrary to law, arbitrary, capricious or an abuse of

discretion. Accordingly, we affirm the superior court's judgment.

FACTS AND PROCEDURAL BACKGROUND

According to the record before the Board, Danam obtained a

substitute teaching certificate and in August 2016, was working as a long

term substitute fourth-grade teacher at Diamondback Elementary School

("Diamondback") in the Bullhead Elementary School District. Danam did

not have a contract for the school year, but rather worked on a "day-by-day

basis." A month into the school year, the principal met with Danam outside

his classroom and notified him that his substitute teaching assignment was

ending and that a fully certified teacher would be returning to the school to

replace him.

Immediately after the meeting, Danam asked an instructional

aide to accompany him back to his classroom and be "a witness"; inside the

classroom, Danam told his students "he would no longer be their teacher"

and was "being asked to leave." As he spoke to the students, Danam

became emotional and told them to "go home and tell your parents what

[the principal] and the School Board is doing to me." This upset the

students, some of whom became "very distraught" and began crying. The

principal eventually arrived, calmed the students and sent Danam home.

Over the next few days, Danam repeatedly emailed the

students' parents, the principal, the district assistant superintendent and

others, demanding hearings and threatening litigation. Danam suggested

parents could receive monetary damages if a lawsuit were filed and

encouraged them to obtain medical attention for their children so they

DANAM v. AZ BOARD OF EDUCATION

Decision of the Court

could document "emotional and psychological distress." In one email, he

suggested he would sue for $19,999.98 in damages in small claims court and

would distribute $260 of that sum to each of his former students as

compensation for their "emotional and psychological damages." Danam

also recommended parents consider filing a class-action lawsuit for

emotional and psychological damages exceeding one million dollars.

Damam also mailed a lengthy compilation of documents to

the superintendent, with copies to the school board, other school

administrators, parents, the Board, the mayor of Bullhead City and other

municipal officials.

The packet of documents purported to seek

"Authorized & Sanctioned Board Review for Wrongful Termination" and to

constitute "Official Notice of Pending Litigation & Preparation for Civil

Proceedings, Notification of Multiple Federal & State Laws, Statutes and

Regulations Violations." One page of the packet was directed to the

principal and assistant superintendent. In it, Danam asserted that the

"current circumstances" were the "direct consequence of" actions by the

principal and assistant superintendent and asserted, "Whoever sows

injustice reaps calamity," "Be assured that exact and precise justice will be

manifested," and "You will not escape the consequences." Another

document he later faxed to the school read "Justice, Vindication &

Vengeance" and "Vengeance is MINE, I will repay." This last document

prompted the principal to obtain an injunction against workplace

harassment against Danam.

116

In October 2016, the Board notified Danam he was the subject

of a formal professionalism investigation based on his conduct with the

students on the day he was terminated and the threatening documents he

sent to school officials thereafter. In March 2017, Danam applied for a

teaching position at Laveen Elementary School District; on his application,

he answered "[n]o" in response to the question, "Have you ever been the

subject of a school district or Department of Education ... investigation,

inquiry, or review of alleged misconduct?" After the Laveen district hired

Danam, it learned he was under Board investigation. When the district

asked Danam about his apparent false statement, he resigned.

In August 2017, the Board served Danam with a complaint

that alleged professional misconduct based on his statements to his

students and their parents, his harassing communications to school officials

and the misrepresentation on his application for employment in the Laveen

district.

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The Board's Professional Practices Advisory Committee

("Committee") conducted a hearing on the Board's complaint. In the

hearing, Danam was permitted to testify, call and cross-examine witnesses

and offer documents in evidence. After the hearing, the Committee

concluded Danam engaged in three types of unprofessional conduct: (1) he

failed to "make reasonable efforts to [protect] pupils from conditions

harmful to learning, health, or safety," Arizona Administrative Code

("A.A.C.") R7-2-1308(A)(l); (2) he "[f]alsif[ied] or misrepresented]

documents, records, or facts related to professional qualifications or

educational history or character," A.A.C. R7-2-1308(B)(6); and (3) he

"[e]ngag[ed] in conduct which would discredit the teaching profession,"

A.A.C. R7-2-1308(B)(15).1 The Committee recommended the Board

discipline Danam by revoking his teaching certificates and informing "all

states and territories" of the revocation.

The Board adopted the Committee's findings of fact with

minor changes, adopted the Committee's conclusions of law, and ordered

Danam's teaching certificates revoked and that other states and territories

be notified of the revocation. Danam filed a motion for rehearing; the Board

denied it, concluding he failed to establish any grounds for a rehearing as

required by A.A.C. R7-2-709(B).

Danam filed a notice of appeal to the superior court, then, 55

110

days later, filed in that court a "Motion for New Evidence and Witnesses for

Judicial Review of Administrative Decision." The superior court treated

Danam's filing as a motion for an evidentiary hearing and denied it.

The superior court then affirmed the Board's decision. It

Ill

concluded (1) the Board did not violate Danam's right to due process or his

right to free speech, (2) the Board's decision was not arbitrary, capricious or

an abuse of discretion, (3) substantial evidence supported the Board's

decision and (4) the Board properly denied Danam's motion for rehearing.

Absent material revision after the relevant date, we cite the current

version of a statute or rule.

DANAM v. AZ BOARD OF EDUCATION

Decision of the Court

Danam timely appealed. We have jurisdiction pursuant to Article 6, Section

9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.")

sections 12-120.21(A)(1) (2019) and -913 (2019).2

DISCUSSION

We will affirm an administrative agency's decision unless it is

"contrary to law, is not supported by substantial evidence, is arbitrary and

capricious or is an abuse of discretion." A.R.S. § 12-910(E) (2019). "We defer

to the agency's factual findings if they are supported by substantial

evidence, even if other evidence before the agency would support a

different conclusion." Waltz Healing Ctr., Inc. v. Ariz. Dep't of Health Sews.,

245 Ariz. 610, 613, | 9 (App. 2018). "We consider the evidence in a light

most favorable to upholding the agency's decision." Id. Nonetheless, we

apply our "independent judgment" to questions of law. See Webb v. State ex

rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 557, ^ 7 (App. 2002).

1fl2

The Board Did Not Violate Danam's Due-Process Rights.

Danam argues the Board violated his due-process rights by

denying, ignoring or omitting evidence he wanted to offer at the Committee

hearing. See generally U.S. Const, amend. XIV; Ariz. Const, art. 2, § 4. We

review questions of law de novo. See Webb, 202 Ariz. at 557, ][ 7.

1113

Board rules set out the procedures that govern disciplinary

1114

hearings. The Board established the Committee to "conduct hearings

related to certification" issues involving unprofessional conduct and the

revocation of certificates. A.A.C. R7-2-701(8); see A.A.C. R7-2-205(A)

(Committee "shall act in an advisory capacity to the [Board] in regard to

certification or recertification matters related to immoral conduct,

unprofessional conduct, unfitness to teach, and revocation, suspension, or

surrender of certificates."). At the hearing before the Committee, parties

have the "right to submit evidence in open hearing and conduct cross

examination." A.A.C. R7-2-705(C); see also A.A.C. R7-2-715(C). Upon

request of a party, the Department of Education ("Department") may issue

subpoenas for witnesses, documents and other evidence. A.A.C. R7-2712(A). After the Committee issues its recommendation following a

Although § 12-913 expressly allows a party to appeal to the "supreme

court," we have construed this provision as "also allowing an appeal to the

court of appeals, which was created after § 12-913 was enacted." Svendsen

v. Ariz. Dep't ofTransp., Motor Vehicle Div., 234 Ariz. 528, 533, f 13 (App.

2014).

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Decision of the Court

hearing, the Board reviews the hearing record and the Committee's

recommendation and issues its decision. See A.A.C. R7-2-718.

The right to procedural due process "includes the right to

nfis

notice and opportunity to be heard at a meaningful time and in a

meaningful manner." Salas v. Aril. Dep't of Econ. Sec., 182 Ariz. 141, 143

(App. 1995). Here, the Board provided Danam with adequate opportunity

to be heard at the hearing before the Committee. In its complaint, the Board

notified Danam of the factual allegations against him, the three grounds on

which the charges of unprofessional conduct were based, and the nature of

the discipline the Board proposed to impose. The complaint also listed the

witnesses and exhibits the Board anticipated offering at the hearing.

When the hearing commenced, the hearing officer asked

fl6

Danam if he had any exhibits to offer; Danam replied that he had submitted

documents to the Department's Investigation Unit, but "nothing has been

done ... on those at all." The hearing officer then told Danam he "ha[d] the

opportunity to submit relevant documents." Danam then offered, and the

hearing officer admitted, Danam's response brief and two letters signed by

the Diamondback school principal. During the hearing, Danam testified

and cross-examined each of the State's witnesses.

1fl7

Although Danam expressed concern at the hearing that he

was unfamiliar with the Committee's "protocol" and that he could not bring

the students' parents to testify for lack of financial resources, Danam had

the option to, and contends he did, obtain affidavits from some of the

parents. He did not, however, offer the affidavits in evidence at the hearing.

1(18

As noted, Danam filed a "Motion to Rehear Case," but he did

not argue in that motion that the hearing officer rebuffed any attempt he

had made to call witnesses or offer affidavits at the hearing. The same day

Danam filed his motion for rehearing, he also filed with the Board an

"Appeal Brief" to which he attached several documents he characterized as

affidavits. But he did not argue the hearing officer had precluded him from

calling witnesses on his behalf. Nor did he argue that the hearing officer

refused to admit or the Committee or the Board failed to consider any

affidavits he offered in evidence. Instead, in his "Appeal Brief," Danam

cited as an error the Department's "[f]ailure ... to provide official record of

affidavits obtained by current and former parents of Diamondback

Elementary School." But it was Danam's choice to offer evidence on his

behalf, not the Board's obligation to do so. When a party is provided the

opportunity to be heard and "chooses not to exercise it," that party cannot

later claim to have been denied procedural due process. Watahomigie v.

DANAM v. AZ BOARD OF EDUCATION

Decision of the Court

Ariz. Bd. of Water Quality Appeals, 181 Ariz. 20, 27 (App. 1994). Moreover,

unrepresented parties such as Danam are held "to the same standards as

attorneys." Flynn v. Campbell, 243 Ariz. 76, 83, f 24 (2017).

Because the Board provided Danam with meaningful notice

and opportunity to be heard at the hearing, it did not violate his dueprocess rights.3

1T19

Substantial Evidence Supported the Board's Factual Findings.

"We will not disturb an agency's factual findings that the

evidence substantially supports." JH2KILLC v. Ariz. Dep't of Health Servs.,

246 Ariz. 307, 310, f 8 (App. 2019). "If two inconsistent factual conclusions

could be supported by the record, then there is substantial evidence to

support an administrative decision that elects either conclusion." DeGroot

v. Ariz. Racing Comm'n, 141 Ariz. 331,336 (App. 1984) (citation omitted).

1P0

1f21

The Board found Danam (1) upset his students by

emotionally telling them that he would no longer be their teacher, (2) later

sent emails to parents encouraging litigation and documents to school

officials threatening vengeance, then (3) still later, lied on an employment

application about not having been under Department investigation.

1122

In support of those findings, <■ Diamondback's principal

testified that after he told Danam his teaching assignment was ending, the

principal entered Danam's classroom and found the fourth-grade students

"look[ing] disheveled" and saw "a lot of kids crying, a lot of people upset

[and] a few kids yelling." The instructional aide in the classroom testified

that Danam became "emotional" when telling the students he would "no

longer be their teacher" and was "being asked to leave." She testified that

an "agitated" Danam then insisted the students "go home and tell their

parents what [the principal] and the School Board was doing to him," and

that the students "were very distraught" and started crying. The aide

Danam also argues the Board violated due process by relying on

"false and perjured testimony," but for that proposition he relies only on

evidence not offered at the hearing. See A.R.S. § 12-910(D) (review by

appellate court limited to "record of the administrative proceeding" unless

superior court holds evidentiary hearing or trial de novo); GM Dev. Corp. v.

Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4 (App. 1990) ("An appellate court's

review is limited to the record before the trial court."). He also argues that

the Board and the superior court violated due process because they were

biased, but he offers no evidence to support this argument.

DANAM v. AZ BOARD OF EDUCATION

Decision of the Court

explained she then took the students to the bathrooms to "calm themselves

down."

1123

Further evidence showed Danam sent written threats to the

school principal and the district's assistant superintendent, which

prompted the principal to obtain a workplace harassment injunction

against Danam. See supra ][ 5. Danam also repeatedly emailed parents,

urging them to seek medical attention for the emotional distress their

children purportedly experienced and encouraging a multimillion-dollar

lawsuit on their behalf. One parent testified Danam left her multiple latenight voicemails and asked her to "set fire on his behalf" and "write papers."

1f24

Finally, the Committee heard evidence that in Danam's 2017

application to Laveen Elementary School District, he falsely answered

"[n]o" when asked whether he has "ever been the subject of a school district

or Department of Education ... investigation, inquiry or review of alleged

misconduct." At the hearing, Danam admitted he received and responded

to the Department's "Notice of Investigation" letter in 2016.

As reflected by this account of the evidence, the Board's

1125

factual findings were amply supported by substantial evidence. See A.R.S.

§ 12-910(E).

The Board's Legal Conclusions and the Discipline It Imposed

Were Not Arbitrary, Capricious or an Abuse of Discretion.

1126

We also conclude that based on the Board's factual findings,

its conclusions that Danam acted unprofessionally under R7-2-1308(A)(l),

(B)(6), and (B)(15) and its decision to revoke his teaching certificates were

not arbitrary, capricious or an abuse of discretion. See A.R.S. § 12-910(E). A

decision is "arbitrary" if it is "unreasoning action, without consideration and

in disregard of the facts and circumstances." Maricopa County Sheriff's Office

v. Maricopa County Emp. Merit Sys. Comm'n, 211 Ariz. 219, 222, ^ 14 (2005)

(citation omitted). "An 'abuse of discretion' is discretion manifestly

unreasonable, or exercised on untenable grounds, or for untenable

reasons." Torres v. N. Am. Van Lines, Inc., 135 Ariz..35, 40 (App. 1982). "A

decision supported by substantial evidence may not be set aside as being

arbitrary and capricious." Smith v. Ariz. Long Term Care Sys., 207 Ariz. 217,

220, f 14 (App. 2004).

1f27

On the record presented, the Board did not err by concluding

Danam acted unprofessionally by failing to "[m]ake reasonable efforts to

prevent pupils from conditions harmful to learning, health, or safety," R72-1308(A)(l); "[f]alsify[ing] or misrepresent[ing] documents, records, or

DANAM v. AZ BOARD OF EDUCATION

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facts related to professional qualifications or educational history or

character," R7-2-1308(B)(6); and "[e]ngag[ing] in conduct which would

discredit the teaching profession," R7-2-1308(B)(15). The Board's decision

was reasonable and well-supported by the evidence. See Smith, 207 Ariz. at

220,114; Torres, 135 Ariz. at 40.

1128

The Board also did not err in revoking Danam's teaching

certificates and notifying other states of the revocation. Contrary to

Danam's contention that the revocation violated A.R.S. § 15-203(A)(20)

(2019) as an excessive penalty, the Board's discipline fell squarely within its

statutory authority to "supervise and control the certification of persons

engaged in instructional work" and "[i]mpose such disciplinary action,

including the . .. revocation of a certificate, on a finding of immoral or

unprofessional conduct." A.R.S. § 15-203(A)(14), (20); see also A.A.C. R7-21308(C) ("Individuals found to have engaged in unprofessional or immoral

conduct shall be subject to, and may be disciplined by, the Board."); Petras

v. Ariz. State Liquor Bd., 129 Ariz. 449, 452 (App. 1981).

1129

In sum, we conclude the Board's conclusions and the

discipline it imposed were not arbitrary, capricious or an abuse of

discretion.4

The Board Did Not Abuse Its Discretion in Denying Danam's

Motion for Rehearing.

1f30

Danam argues the Board improperly denied his motion for

rehearing. We review the Board's denial of a motion for rehearing for abuse

of discretion. See O'Neal v. Indus. Comm'n, 13 Ariz. App. 550, 552 (1971).

Danam also argues the decisions of the Board and the superior court

defamed him in violation of his constitutional rights under 42 U.S.C. § 1983

(2018). Any cause of action for defamation or claim under § 1983 falls

outside the scope of our review. See A.R.S. § 12-910(E) (limiting superior

court review to whether agency action was "contrary to law, ... not

supported by substantial evidence,... arbitrary and capricious or ... an

abuse of discretion"); A.R.S. § 12-913. In any event, to be defamatory, a

publication must be false, Turner v. Devlin, 174 Ariz. 201,203 (1993), and we

already have determined that substantial evidence supported the Board's

factual findings. See supra ^ 21-25.

DANAM v. AZ BOARD OF EDUCATION

Decision of the Court

1f3l

Arizona Administrative Code R7-2-709(B) provides:

A rehearing of a decision by the Board may be granted for any

of the following causes materially affecting the moving

party's rights:

1. Irregularity in the administrative proceedings of the

hearing body, or abuse of discretion, whereby the moving

party was deprived of a fair hearing.

2. Misconduct of the hearing body or the prevailing party.

3. Accident or surprise which could not have been prevented

by ordinary prudence.

4. Newly discovered material evidence which could not with

reasonable diligence have been discovered and produced at

the hearing.

5. Excessive or insufficient penalties.

6. Error in the admission or rejection of evidence or other

errors of law occurring at the administrative hearing.

7. That the decision is not justified by the evidence or is

contrary to the law.

1132

A motion for rehearing must "specify [] the particular grounds

therefor." A.A.C. R7-2-709(A). Here, Danam's motion for rehearing did not

cite any grounds under R7-2-709(B); rather, it generally alleged due-process

violations and discrepancies in the hearing. As we discussed above, see

supra || 13-19, no due-process violation occurred. In the "Appeal Brief" he

filed at the same time, Danam offered an extensive list of evidence he

wanted to use at the rehearing but failed to show any of it was "[njewly

DANAM v. AZ BOARD OF EDUCATION

Decision of the Court

discovered material evidence" that he could not have discovered and

offered at the original hearing with reasonable diligence. A.A.C. R7-2709(B)(4).5 Danam also failed to substantiate the other numerous grounds

he cited for rehearing.

Because Danam failed to establish any grounds for a

1133

rehearing under R7-2-709(B), the Board did not abuse its discretion by

denying his motion for rehearing.

The Superior Court Did Not Abuse Its Discretion by Denying

Danam's Motion for an Evidentiary Hearing.

Danam argues the superior court erred by denying his motion

134

for an evidentiary hearing. We review the court's denial of a motion for an

evidentiary hearing for abuse of discretion. Am. Power Prods., Inc. v. CSK

Auto, Inc., 239 Ariz. 151,154,110 (2016).

135

The superior court properly denied Danam's motion as

untimely. Arizona Rule of Procedure for Judicial Review of Administrative

Decisions 10(c) required Danam to file his motion for an evidentiary

hearing "within 30 days after the filing of the notice of appeal." Danam filed

his motion 55 days after filing his notice of appeal. Even though he was

representing himself, he still was required to comply with applicable

procedural rules. See Plynn, 243 Ariz. at 83, f 24.

Timeliness aside, the superior court also did not abuse its

136

discretion by denying Danam's motion because he failed to "identify] why

new evidence and/or witnesses [were] required in order for the Court to

make its determination on appeal." See A.R.S. § 12-910(A) (instructing court

to hold evidentiary hearing "to the extent necessary to make the

determination required by subsection E") (emphasis added).

We note that the affidavits Danam attached to his motion for

rehearing did not refute any material findings of fact underlying the Board's

decision. The affidavits purportedly were authored by students and their

parents or caretakers; they said Danam was a good, well-liked teacher and

that students were sad and upset when he left. They also expressed

displeasure at Danam's termination. These affidavits were not material to

the issues of whether Danam acted unprofessionally after he was

terminated and what discipline, if any, was appropriate. See A.A.C. R7-2709(B)(4).

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Decision of the Court

The Board and the Superior Court Did Not Violate Danam's FreeSpeech Rights.

137

Danam argues the Board and superior court violated his

rights to free speech under the federal and state constitutions. See generally

U.S. Const, amend. I; Ariz. Const, art. 2, § 6. Specifically, he contends that

because his statements addressed issues of public concern and he was not

unprofessional in criticizing Diamondback's principal, the Board's

discipline violated his free-speech rights. In support of this argument, he

cites Pickering v. Board of Education ofToxunship High School District 205, 391

U.S. 563 (1968). We review questions of law de novo. See Webb, 202 Ariz. at

557, f 7.

Danam's reliance on Pickering is misplaced. In that case, the

138

board of education fired a teacher after the local newspaper published the

teacher's letter criticizing the board's handling of bond proposals and

resource allocation and accused the superintendent of preventing teachers

from criticizing the bond proposal. 391 U.S. at 564-66. The Court held the

board violated the teacher's First Amendment rights by firing him for the

letter. Id. at 565.

139

In concluding that the teacher's letter constituted protected

speech, the Court made clear that the teacher's statements concerned school

funding, an issue of "legitimate public concern," and were "neither shown

nor [could] be presumed to have in any way either impeded the teacher's

proper performance of his daily duties in the classroom or to have

interfered with the regular operation of the schools generally." Id. at 569,

571-73 (footnote omitted). Thus, as Danam himself acknowledges, the

proper free-speech analysis under Pickering hinges on whether the speech

at issue was "inappropriate and unprofessional."

140

Here, Danam's statements are a far cry from the teacher's

letter to the editor in Pickering. First, the statements Danam made to his

students, the threatening documents he sent to school officials and his

communications to parents all concerned a private employment matter, not

an issue of public concern. Second, the evidence showed Danam

interrupted and impeded the school day by making students distraught,

required the instructional aide to calm the students down by taking them

outside and forced the principal to have a discussion with students about

the situation in the middle of the school day. Further, Danam's threatening

communications to school officials prompted the principal to obtain an

injunction against workplace harassment, and Danam's emails, late-night

calls and voicemails to parents were inappropriate and caused concern.

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Decision of the Court

In short, the Board disciplined Danam not for what he said,

141

but for what he did: He failed to protect students from "conditions harmful

to learning, health, or safety," he lied on his 2017 employment application

about having been under Department investigation, and he acted in a

manner which "discredited] the teaching profession." A.A.C. R7-21308(A)(1), (A)(6), (B)(15). For these reasons, Danam's claimed free-speech

violation fails.6

CONCLUSION

We conclude substantial evidence supported the Board's

142

decision and the decision was not contrary to law, arbitrary, capricious or

an abuse of discretion under A.R.S. § 12-910(E). Accordingly, we affirm the

superior court's judgment upholding the Board's decision.

AMY M. WOOD • Clerk of the Court

FILED: AA

Danam also argues the Board and the superior court violated his

right to petition for redress of grievances. See generally U.S. Const, amend.

I; Ariz. Const, art. 2, § 5. As relevant here, this right "bars state action

interfering with access to ... the judicial branch." Ruiz v. Hull, 191 Ariz.

441, 457, f 61 (1998). Danam offers no evidence that the administrative or

appellate process unconstitutionally interfered with his access to the

judicial branch. As we have discussed, see supra || 13-19, Danam received

adequate opportunity to be heard at the Committee hearing and he has

availed himself of his right to appeal the Board's decision.

IN THE

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

RAFAEL CEZAR DANAM,

)

Plaintiff/Appellant, )

ARIZONA BOARD OF EDUCATION,

)

DIVISION -ONE

FILED: 04/23/2020

AMY M. WOOD,

CLERK

BY: DN

Court of Appeals

Division One

No. 1 CA-CV 18-0668

Maricopa County

Superior Court

No. LC2018-00093-001

)

Defendant/Appellee. )

)

MANDATE

TO:

The Maricopa County Superior Court and the Honorable Patricia

A Starr, Judge, in relation to Cause No. LC2018-000093-001.

This cause was brought before Division One of the Arizona Court

of Appeals in the manner prescribed by law. This Court rendered its

MEMORANDUM DECISION and it was filed on October 31, 2019.

The time for the filing of a motion for reconsideration has

expired and no motion was filed. A petition for review was filed. By

order, dated'March 31, 2020, the Arizona Supreme Court denied the petition

for review. Arizona Supreme Court No. T-19-0006-CV.

NOW, THEREFORE, YOU ARE COMMANDED to conduct such proceedings

as required to comply with the MEMORANDUM DECISION of this court; a copy

of which is attached hereto.

I, Amy M. Wood, Clerk of the Court of Appeals, Division One,

hereby certify the attachment to be a full and accurate copy of the

MEMORANDUM DECISION filed in this cause on October 31, 2019.

IN WITNESS WHEREOF, I hereunto set my hand and affix the official seal

of the Arizona Court of Appeals, Division One, on April 23, 2020.

AMY M. WOOD, CLERK

dtn

Deputy Clerk

Court of Appeals:

AMY M. WOOD

CLERK OF THE COURT

STATE OF ARIZONA

DIVISION ONE

STATE COURTS BUILDING

1501 WEST WASHINGTON STREET

PHOENIX, ARIZONA 85007

Phone: (602)452-6700

fax:

(602)452-3226

April 23, 2020

Jeff Fine, Clerk

Maricopa County Superior Court

201 West Jefferson Street

Phoenix, Arizona 85003

Dear Mr. Fine:

RE:

1 CA-CV 18-0668

DANAM v. AZ BOARD OF ED

Maricopa County Superior Court

LC2018-000093-001

The following are attached in the above entitled and numbered cause:

Original MANDATE

Copy of MEMORANDUM DECISION

There are no physical record items to be returned to your Court.

AMY M. WOOD, CLERK

By.

A copy of the foregoing

was sent to:

Rafael Cezar Danam

Kim S Anderson

Hon Patricia A Starr

dtn

Deputy Clerk

IN THE

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

RAFAEL CEZAR DANAM,

)

Plaintiff/Appellant, )

DIVISION ONE

FILED: 04/23/2020

AMY M. WOOD,

CLERK

BY: DN

Court of Appeals

Division One

No. 1 CA-CV 18-0668

)

ARIZONA BOARD OF EDUCATION,

)

Maricopa County

Superior Court

No. LC2018-00093-001

)

Defendant/Appellee. )

)

MANDATE

The Maricopa County Superior Court and the Honorable Patricia

TO:

A Starr, Judge, in relation to Cause No. LC2018-000093-001.

This cause was brought before Division One of the Arizona Court

of Appeals in the manner prescribed by law. This Court rendered its

MEMORANDUM DECISION hnd it was filed on October 31, 2019.

The time for the filing of a motion for reconsideration has

expired and no motion was filed. A petition for review was filed. By

order, dated March 31, 2020, the Arizona Supreme Court denied the petition

for review. Arizona Supreme Court No. T-19-0006-CV.

NOW, THEREFORE, YOU ARE COMMANDED to conduct such proceedings

as required to comply with the MEMORANDUM DECISION of this court; a copy

of which is attached hereto.

I, Amy M. Wood, Clerk of the Court of Appeals, Division One,

hereby certify the attachment to be a full and accurate copy of the

MEMORANDUM DECISION filed in this cause on October 31, 2019.

IN WITNESS WHEREOF, I hereunto set my hand and affix the official seal

of the Arizona Court of Appeals, Division One, on April 23, 2020.

AMY M. WOOD, CLERK

dtn

By.

Deputy Clerk

Court ot Appeals

AMY M. WOOD

CLERK OF THE COURT

STATE OF ARIZONA

DIVISION ONE

STATE COURTS BUILDING

1501 WEST WASHINGTON STREET

PHOENIX, ARIZONA 85007

Phone: (602) 452-6700

Fax:

(602)452-3226

April 23, 2020

Jeff Fine, Clerk

Maricopa County Superior Court

201 West Jefferson Street

Phoenix, Arizona 85003

Dear Mr. Fine':

RE:

1 CA-CV 18-0668

DANAM v. AZ BOARD OF ED

Maricopa County Superior Court

LC2018-000093-001

The following are attached in the above entitled and numbered cause:

Original MANDATE

Copy of MEMORANDUM DECISION

There are no physical record items to be returned to your Court.

AMY M. WOOD, CLERK

By.

A copy of the foregoing

was sent to:

Rafael Cezar Danam

Kim S Anderson

Hon Patricia A Starr

dtn

Deputy Clerk

APPENDIX B: Decision and Orders of Superior Court of Arizona

APPENDIX B

APPENDIX B: Decision and Orders of Superior Court of Arizona

APPENDIX B

APPENDIX B: Decision and Orders of Superior Court of Arizona

APPENDIX B

APPENDIX B: Decision and Orders of Superior Court of Arizona

APPENDIX B

Chris DeRose, Clerk of Court

*** piled ***

10/03/2018 8:00 AM

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

09/27/2018

LC2018-000093-001 DT

CLERK OF THE COURT

C. Avena

Deputy

HONORABLE PATRICIA ANN STARR

RAFAEL CEZAR DANAM

6104 W TOWNLEY AVE

GLENDALE AZ 85302

ARIZONA BOARD OF EDUCATION (001)

PROFESSIONAL PRACTICES ADVISORY

COMMITTEE (001)

OFFICE OF ATTORNEY GENERAL STATE OF

ARIZONA (001)

KIM SUSAN ANDERSON

JUDGE STARR

OFFICE OF ADMINISTRATIVE

HEARINGS

REMAND DESK-LCA-CCC

RECORD APPEAL RULING / REMAND

Appellant Rafael Cezar Danam seeks reversal of the October 23,2017 Decision of the

Arizona State Board of Education (“the Board”) revoking Danam’s teaching certificate. For the

following reasons, this Court affirms that Decision.

I. Facts and Procedural Background

Danam held a substitute teaching certificate which expired in 2022, From 2015 through

2016, he worked as a substitute teacher at Bullhead City Elementary School. Beginning in

August of 2016, Danam worked as a long-term substitute teacher at Diamondback Elementary

School. He was paid the daily rate for a long-term substitute teacher and did not have a contract.

In September of 2016, the principal at Diamondback informed Danam that he would be

relieved of his substitute teacher assignment. Danam then went to his class of 4th graders and

Docket Code 512

Form L512

Page 1

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

LC2018-000093-001 DT

09/27/2018

told them he would not be their teacher anymore; while talking to the class, Danam became

emotional and began to cry. Danam told the students to go home and tell their parents what had

been done to him. Upon seeing Danam cry, the students became upset and began to cry as well.

The principal then arrived and told Danam to leave immediately.

Danam began sending emails to district personnel, city officials, community leaders, and

parents. Based on the content of some of the communications, the principal sought and obtained

an Injunction Against Workplace Harassment.

In October of 2016, a Board investigator sent a Notice of Investigation letter to Danam.

After receipt of the Notice, Danam responded in writing. The investigator later interviewed

Danam.

In March of 2017, Danam applied for a job as a teacher with the Laveen Elementary

School District. On the application, Danam answered “no” when asked if he had ever been the

subject of a district or Department of Education investigation or inquiry. The Laveen District

hired Danam to teach for the 2017-2018 school year. Shortly after he signed his employment

contract, a human resources professional was notified that Danam was under investigation by the

Department of Education. After he was confronted, Danam resigned.

On August 30, 2017, the Board served Danam with a Complaint, which alleged that he

had engaged in unprofessional conduct by: (1) making inappropriate and unprofessional

statements to his 4th grade class; (2) sending inappropriate and unprofessional communications to

parents and school personnel; and (3) making a false statement, representation, or certification in

an application for employment. The Board sought appropriate discipline for those violations.

The matter proceeded to a hearing before the Professional Practices Advisory Committee

(“PPAC”). Danam appeared at the hearing, at which he testified, examined witnesses, and

submitted exhibits. After the hearing, the PPAC reached the following conclusions:

(1) On September 21, 2016, Danam “failed to make reasonable efforts to prevent

pupils from conditions harmful to learning, health, or safety when he made

inappropriate and unprofessional comments to 4th grade students that upset

students, made students cry, and interrupted the school day.”

(2) Danam “sent numerous inappropriate and unprofessional emails to parents of

4th grade students ...”

Docket Code 512

Form L512

Page 2

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

LC2018-000093-001 DT

09/27/2018

(3) Danam “widely disseminated written communications” containing threats.

(4) Danam made a false statement, representation or certification when he denied

ever having been the subject of an investigation.

Accordingly, the PPAC found that Danam violated A.R.S. § 15-512(N) by making a false

statement, representation or certification in his application for employment with the Laveen

Elementary School District. The PPAC further found that Danam engaged in unprofessional

conduct as defined by A.A.C. R7-2-1308(A)(1) (failing to make reasonable efforts to prevent

pupils from conditions harmful to learning, health or safety), and A.A.C. R7-2-1308(B)(6)

(falsifying or misrepresenting documents, records, or facts related to his professional

qualifications, education history or character). Finally, the PPAC found that Danam engaged in

unprofessional conduct in violation of A.A.C. R7-2-1308(B)(15) (engaging in conduct which

discredited the teaching profession).

The PPAC recommended that the Board revoke Danam’s teaching license.

The Board considered the PPAC’s recommendation and heard argument from Danam at a

public hearing. The Board modified some of the PPAC’s findings of fact, adopted the PPAC’s

conclusions of law, and ordered that any and all teaching certificates held by Danam be revoked,

and that all states and territories be notified.

The Board later denied Danam’s request for rehearing/reconsideration. Danam filed a

timely appeal from that decision. This Court has jurisdiction pursuant to A.R.S. §§ 12-124(A)

and 12-905(A).

II. Standard of Review

A reviewing court shall affirm the action of an agency unless, after reviewing the record,

the court concludes that the action is not supported by substantial evidence, is contrary to law, is

arbitrary and capricious or is an abuse of discretion. A.R.S. § 12-910(E).

A reviewing court must defer to the agency’s factual findings if they are supported by

substantial evidence. Gaveck v. Arizona State Bd. ofPodiatry Examiners, 222 Ariz. 433,436, f

11 (App. 2009). If the record supports two inconsistent factual conclusions, then there is

substantial evidence to support an administrative decision that adopts either conclusion.

DeGroot v. Arizona Racing Comm'n, 141 Ariz. 331, 336 (App. 1984).

Docket Code 512

Form L512

Page 3

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

LC2018-000093-001 DT

09/27/2018

III. Legal Analysis

1. Danam has not established that the Board wrongly excluded or refused to admit affidavits,

evidence or testimony at the hearing.

Danam appeared at the hearing held by the PPAC, testified, examined witnesses, and

provided exhibits. While he claims he was prevented from presenting affidavits, witnesses, and

testimony, nothing in the record supports that assertion.

Danam s procedural due process rights were honored. “Procedural due process includes

the right to notice and opportunity to be heard at a meaningful time and in a meaningful

manner.” Salas v. Arizona Dept. ofEcon. Sec., 182 Ariz. 141,143 (App. 1995). Here, Danam

had an opportunity to be heard in a meaningful time and manner: he received notice of the

hearing, attended the hearing, participated in the hearing, and has now availed himself of his

right of appeal. No more was required.

2. The Board did not violate Danam’s constitutional rights.

Danam next argues that the Board violated his right to freedom of speech, and right to

redress of grievances. But he provides no support for that assertion.

Here, the Board disciplined Danam based on unprofessional and inappropriate statements

made to children, and threats made to school district personnel. Those facts distinguish this case

from that of Pickering v. Board ofEducation, 391 U.S. 563 (1938), upon which Danam relies.

In Pickering, the teacher’s statements could not be shown to have impeded the teacher’s

duties or interfered with the operation of the school. Id. at 572-73. The opposite situation is

presented here. Moreover, Danam has not shown that any constitutional right he po ssesses was

violated by the proceedings that took place here.

3. The Board’s decision was not arbitrary, capricious, or an abuse ofdiscretion.

The Court has reviewed the record to determine whether the Board’s decision constituted

an abuse of discretion, or was arbitrary and capricious.

An entity abuses its discretion when it exercises its discretion in a manner that is

unreasonable, on untenable grounds, or for untenable reasons. Tilley v. Delci, 220 Ariz. 233,

238, f 16 (App. 2009). An action is arbitrary and capricious if it is taken with a disregard for the

facts and circumstances; when an action is taken honestly and upon due consideration, it is not

Docket Code 512

Form L512

Page 4

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

09/27/2018

LC2018-000093-001 DT

arbitrary and capricious. Shaffer v. Arizona State Liquor Bd., 197 Ariz. 405,411, ^ 28 (App.

2000).

Here, the record establishes that the Board acted well within its statutory authority and

rules when it revoked Danam’s teaching certificate. Danam has presented no factual or legal

argument that establishes an abuse of discretion, or that the Board’s actions were arbitrary or

capricious.

................. 4. Substantial evidence supports the Board’s decision to revoke Danam’s license

Substantial evidence supports the Board’s decision to revoke Danam’s teaching license.

Moreover, even if the record supported two inconsistent factual conclusions/there would be

substantial evidence to support an administrative decision that adopts either conclusion.

DeGroot v. Arizona Racing Comm'n, 141 Ariz. 331, 336 (App. 1984). In any event, in this case,

the record only supports the conclusions reached by the Board.

5. The discipline imposed did not constitute an abuse of discretion.

On the record before it, the Court finds that the discipline imposed by the Board did not

constitute an abuse of its discretion. In this case, the discipline imposed was within the statutory

authority of the Board. See A.R.S. § 15-203(A)(20).

6. The Board acted within its authority when it denied Danam’s motion for rehearing.

Finally, the Board appropriately denied Danam’s motion for rehearing, because it failed

to establish grounds for rehearing. See A.A.C. R7-2-709(B)(l-7) (grounds for rehearing).

IV. Conclusion

Based on the foregoing, this Court concludes there is substantial evidence to support the

Board s decision, and that the decision was not contrary to law, was not arbitrary or capricious,

and was not an abuse of discretion.

If any party wishes to appeal this decision, that party must do so pursuant to A.R.S. § 12913 and Rule 9(a), Ariz. R. Civ. App. Proc.

IT IS THEREFORE ORDERED affirming the October 23, 2017 Decision of the Arizona

State Board of Education revoking Danam’s teaching license and informing all state and

territories of that revocation.

Docket Code 512

Form L512

Page 5

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

LC2018-000093-001 DT

09/27/2018

IT IS FURTHER ORDERED that this is a final judgment for purposes of appeal, as no

further matters remain pending. See Rule 54(c), Ariz. R. Civ. P.

IT IS FURTHER ORDERED signing this minute entry as a formal order of the Court.

/s/ Patricia A. Starr

The Hon. Patricia A. Starr

Judge of the Superior Court

NOTICE: LC cases are not under the e-file system. As a result, when a party files a docu

ment, the system does not generate a courtesy copy for the Judge. Therefore, you will have to

deliver to the Judge a conformed courtesy copy of any new filings.

Docket Code 512

Form L512

Page 6

COURT STAMP

Rafael Cezar Danam

6104 W. Townley Avenue

Glendale, AZ 85302

E-mail: rafaeldanam@gmail.com

Telephone: (909) 297-9171 cellular

Appellant In Propia Persona “Noli Me Tangere ”

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

RAFAEL CEZAR DANAM,

Appellant.

CASE NO: LC 2018-000093-001

Vs.

ARIZONA BOARD OF EDUCATION,

APPELLANT OPENING BRIEF

FOR JUDICIAL REVIEW OF

ADMINISTRATIVE DECISION

(Administrative Review)

HON. PATRICIA ANN STARR, JUDGE

Appellee.

1. Table of Contents Appellant (JRAD Rule 17-0013, Rule 7 (aY)

(1) TABLE OF CONTENTS............

(2) APPELLANT INTRODUCTION

(3) STATEMENT OF THE CASE...

2-3

(4) STATEMENT OF THE FACTS..

.3-4

(5) STATEMENT OF THE ISSUES.

.4-6

(6) APPELLANT ARGUMENT......

6-8

(7) A “Notice under Rule 21 (a)”.....

8-9

(8) APPELLANT CONCLUSION AND RELIEF SOUGHT BY JUDICIAL ORDER......9

JRAD Form 8: Certification of Word Count

-1 CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

2. Appellant Introduction

Presented before Hon. Judge Patricia Ann Starr, Presiding Judge (Arizona Constitution,

Article 6, § 26; A.R.S. §§ 38-231; cf. 28 U.S. Code § 453), Appellant has filed a Notice of

Appeal for a Trial De Novo in accordance with A.R.S. § 12-910 and JRAD 11, pursuant to

Arizona Supreme Court No. R-17-0013 filed 08/31/2017 for Rules of Procedure for Judicial

Review of Administrative Decisions (JRAD) and Arizona Rules of Civil Appellate Procedure

(ARCAP), Rule 13, in accordance to authority and relief sought by A.R.S. §§ 12-124, A.R.S. §§

12-901 to 914,12-931—12-932, 41-1092. Appellant's Opening Brief by Rafael Danam is

presented to revoke orders that issued REVOCATION OF TEACHING CERTIFICATE

(Substitute Certificate! AND NOTIFICATION TO ALL STATES AND TERRITORIES, which

was issued on 23rd of October 2017, from the final administrative decision BEFORE THE

ARIZONA BOARD OF EDUCATION In the Matter of RAFAEL DANAM FINDINGS OF

FACTS. CONCLUSIONS OF LAW AND ORDER issued by ARIZONA BOARD OF

EDUCATION on October 23rd. 2017 in case no. C-2016-585. Appellant presented Motion for

Rehearing to the Administrative Board of AZSBE on January 4, 2018, and was denied motion

for appeal on February 26, 2018. Appellant seeks judicial order to reverse the decision in whole

by authority of A.R.S. 12—911(A) (5) by Hon. Patricia Ann Starr.

3. Statement of the Case Appellant

4.1) On September 13, 2017 the Arizona Board of Education’s Professional Practices

Advisory Committee (PPAC) held hearing on AZSBE Case No. C-2016-585 in the Matter of

Arizona Board of Education v. Rafael Danam. AZSBE presented all facts and evidence it

amassed against Defendant:Rafael Danam (Appellant).-During hearing Defendant-Rafael Danam

(Appellant) noted absence of evidence and documentation presented to the AZSBE Investigative

Unit, such as affidavits by parents and students, documentation of contract agreement and

numerous contacts for interviews on content and subject of investigation by AZSBE

Investigative Unit. AZSBE PPAC adopted all of its own findings of facts and evidence,

excluding all noted affidavits, witnesses and documentation as evidence for cause of Defendant-

-2CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

Rafael Danam (Appellant). Defendant-Rafael Danam (Appellant) provided supplementary briefs

and documents to further requests of review by AZSBE PPAC on pertinent facts and evidence

not reviewed, excluded or omitted by AZSBE PPAC.

4.2) On October 23, 2017 the AZSBE Members convened to review AZSBE PPAC’s

findings and recommendations. Defendant-Rafael Danam (Appellant) supplied final document

for AZSBE review prior to final decision and order. AZSBE administrative decision against

Defendant-Rafael Danam (Appellant) was to revoke all certification and to notify all states of

action. No further inquiry was made by AZSBE on content and subject addressed by Defendant-

Rafael Danam (Appellant) for inquiry and further review of evidence, pertinent facts, witnesses

and affidavits.

4.3) On January 4, 2018, Defendant-Rafael Danam (Appellant) filed a Motion for

Rehearing with Appeal Brief and Exhibits to the AZSBE. On February 26, 2018 the Motion for

Rehearing was denied by the AZSBE. Included in Defendant-Rafael Danam (Appellant) Appeal

Brief included citation and reference of Arizona Administrative Code §R7-2-709 for the

following reasons for Motion for Rehearing §R7-2-709(B): “1. Irregularity in the proceedings of

the hearing officer or prevailing party, or any order or abuse of discretion, whereby the moving

party was deprived of a fair hearing.” “2. Misconduct of the hearing body or the prevailing

party. 99 a 5. Excessive or insufficient penalties.” “6. Error of law occurring at the hearing or

. 19

during the progress of the proceeding.” And “7. That the findings of fact or decision is not

justified by the evidence or is contrary to law.”

4.4) On March 2, 2018, Appellant-Rafael Danam filed with the Superior Court of

Arizona for Judicial Review of Administrative Decision for current Case No. LC 2018-000093-

001 before Hon. Patricia Ann Starr.

4. Statement of Facts

5.1) From the inception of original filing by Appellant of complaint against former

administrative staff (Principal-Martin Muecke) and executive administrative staff (Asst.

Superintendent-Benji Hookstra) at Bullhead City Elementary School District (BCESD) to the

-3CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

AZSBE Investigative Unit; to include Notice of Investigation (NOI) dated October 13, 2016

against Appellant, the prehearing phase of collecting and reviewing facts, evidence and

witnesses, in addition to reviewing all pertinent laws and/or statutes of violation from September

21, 2016 thru May 26, 2017 from the AZSBE Investigative Unit’s Notice of Case Transfer dated

05/26/2017, to the hearing of AZSBE PPAC on September 13, 2017 and final decision of

AZSBE on October 23, 2017, to the final denial of Motion for Rehearing on February 26, 2018,

the entire scope of AZSBE Case No. C-5 85-2016 presented numerous acts of gross negligence

and abuse of discretion that compelled Appellant to prove errors committed by AZSBE of

A.A.C. §R7-2-709(B) (1)(2)(5)(6)(7) by Judicial Review of Administrative Decision and blatant

violations of U.S. Constitutional and Arizona Constitutional Laws against Appellant by authority

of 42 U.S.C. § 1983; A.R.S. § 12-1841; cf. The Supremacy Clause of the United States

Constitution (Article VI, Clause 2), U.S. Constitution Amendments 1st, 5th, 6th, 14th; Arizona

Constitution Article 2, § 4, 5,6 and 32 (Marbury v. Madison, 5 U.S. 137 (1803); Martin v.

Hunter's Lessee, 14 U.S. 304 (1816); Cohens v. Virginia, 19 U.S. 264 (1821); Pennsylvania v.

Nelson, 350 U.S. 497 (1956); Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)).

5.2) Appellant seeks Judicial Review of Administrative Decision to reverse in whole

decision of AZSBE against Appellant for reasons of unconstitutionality of entire administrative

hearing and proceedings pursuant to A.R.S. §12-931 and A.A.C. §R7-2-709(B) (1)(2)(5)(6)(7).

5. Statement of the Issues

6.1) Appellee never established the true legal definition of preponderance of evidence

against Appellant that validated the AZSBE administrative decision to revoke certification and

notification to all states and territories of decision. Appellee committed gross negligence and

abuse of discretion in denying and/or omitting affidavits, evidence and witnesses that exonerated

Appellant from all allegations presented against Appellant by Appellee in addition to violating

U.S. Constitutional and Arizona Constitutional Laws afforded to Appellant by “freedom of

speech” and “redress of grievances.”

-4CASENO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

6.2) Reference to case record titled Findings of Facts, Conclusions of Law,

Recommendations dated September 12, 2017 16-pages; Findings of Facts 6-8 narrative accepted

by the AZSBE from PPAC shows gross negligence and abuse of discretion in not reviewing

criteria for employment agreements by contractual documentation which Appellant provided in

original AZSBE Defendant Packet as well as numerously referenced in hearing, trial and

supporting correspondence.

6.3) Findings of Facts 9-11 narrative accepted by the AZSBE from PPAC shows gross

negligence and abuse of discretion by not accepting and/or omitting affidavits and supporting

evidence presented by Appellant that nullified the testimony of witness by affidavit, evidence

and lack of validation from entirety of former class by both parents and students.

6.4) Findings of Facts 12-20 narrative accepted by the AZSBE from PPAC shows gross

negligence and abuse of discretion by directly violating constitutional right and legal precedence

by Appellant of “freedom of speech” and “to redress grievances.”

6.5) Findings of Facts 24-28 narrative accepted by the AZSBE from PPAC shows gross

negligence and abuse of discretion due to the fact Appellant directly submitted numerous

communications to Garnett Winders, Chief Investigator of AZSBE Investigative Unit who was

continuously providing information concerning on-going investigation which was perpetrating

errors of gross negligence and abuse of discretion against Appellant that was also violating

constitutional laws and rights ascribed to Appellant in addition to defamation against Appellant

by Appellee representative.

6.6) Conclusions of Law paragraphs 1-3, noting paragraph 3 reference to unprofessional

or immoral conduct as authority of law in A.A.C. R7-2- 1308(C) was never substantiated by a

preponderance of evidence in case record of evidence by Appellee, in addition to establishing

reference to law in legal cases in which Appellant had a personal standard of ethical and moral

standards of professional conduct referenced in evidence presented by Appellant and Appellant

by affidavits and exhibits established numerous positive academic and social professional

relationships amongst students of all grades throughout the BCESD #16 school community

-5 CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

nullifying reference by Appellee to Winters v. Arizona Board of Education, 207 Ariz. 173; 83

P.3d 1114 (2004) in addition to Appellant established numerous positive academic and social

relationships throughout the BCESD #16 community that also nullifies Appellee’s reference to

Welch v. Bd. of Ed. of Chandler U. Sch. Dist., 667 P.2d 746 (Ariz. Ct. App. 1983).

6.7) Conclusions of Law 10, 12 accepted by AZSBE by PPAC and representation by

Asst. Attorney General Office present gross negligence and abuse of discretion by ignoring,

omitting and/or rejecting evidence and exhibits that Appellant presented to nullify Appellee’s

claim of a preponderance of evidence against Appellant.

6. Appellant’s Argument

Appellee revoked certificate of Appellant and notified all territories and states of decision

against Appellant by claim AZSBE as Appellee claimed they fulfilled the legal term of a

preponderance of evidence against Appellant. Appellee committed gross negligence and abuse of

discretion by committing the following violations against Appellant in which Appellant seeks

judicial order to reverse the decision in whole by authority of A.R.S. 12- 911(A) :

7.1) Violation of A.A.C. §R7-2-709(B): “1. Irregularity in the proceedings of the hearing

officer or prevailing party, or any order or abuse of discretion, whereby the moving party was

deprived of a fair hearing.” Appellee by abuse of discretion deprived Appellant of a fair hearing,

right to appeal and defamation by violating the U.S. Constitution and Arizona Constitution by

failing to provide affidavits, exhibits and evidence for the cause Appellant and refused to

acknowledge and review with impartiality pertinent affidavits, exhibits and evidence that

provided a preponderance of evidence in favor of Appellant, violation of constitution reference

to 42 U.S.C. § 1983; A.R.S. § 12-1841; cf. The Supremacy Clause of the United States

Constitution (Article VI, Clause 2), U.S. Constitution Amendments 1st, 5th, 6th, 14th; Arizona

Constitution Article 2, § 4, 5,6 and 32 (Marbury v. Madison, 5 U.S. 137 (1803); Martin v.

Hunter's Lessee, 14 U.S. 304 (1816); Cohens v. Virginia, 19 U.S. 264 (1821); Pennsylvania v.

Nelson, 350 U.S. 497 (1956); Brown v. Board of Education of Topeka, 347 U.S. 483 (1954));

violation of impartiality reference to Witherspoon v. Illinois, 391 U.S. 510 (1968); McCray v.

-6CASE NO: LC 2018-000093-001

RAFAEL CEZAR DAN AM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

Illinois, 386 U.S. 300, 313-14 (1967); Pennsylvania v. Ritchie, 480 U.S. 39, 51-54 (1987);

Olden v. Kentucky, 488 U.S. 227 (1988) (per curiam); Michigan v. Lucas, 500 U.S. 145 (1991);

violation of due process reference to Moore v. Dempsey, 261 U.S. 86 (1923); violation of

freedom of speech and redress of grievances reference to Pickering v. Board of Education, 391

U.S. 563 (1968); Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Givhan v.

Western Line Consolidated School District, 439 U.S. 410 (1979); Wieman v. Updegraff, 344 U.

S. 183 (1952); Shelton v.Tucker, 364 U. S. 479 (1960); Keyishian v. Board of Regents, 385 U. S.

589 (1967); Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006);

defamation against Appellant by gross negligence and abuse of discretion by Appellee, reference

to A.R.S. § 12-541; cf. A.R.S. §12-3101; cf. 28 U.S. Code § 4101; Denmark, Danish Penal Code

Article 267; United Kingdom Defamation Act 2013; Italy Article 368, Penal Code; Spain Article

205 of the Penal Code; Switzerland, Swiss Penal Code Articles 174-1 and 174-2; “General

comment No. 34”, U.N. Human Rights Committee, 102nd session, published 12 September

2011, reference to Deer Valley Unified Sch. Dist. No.97, 214 Ariz. at 296 If 9, 152 P.3d at 493,

pg. 13-20 Office of Attorney General Handbook, 2013; Knox v. New York City Dept, of Educ.,

85 A.D.3d 439 (N.Y. App. Div. 1st Dept. 2011. Appellee has violated A.A.C. §R7-2-709(B) (1)

which by this alone merits judicial order and judgment to reverse in whole the decision of the

AZSBE as Appellee against Appellant which primary reference of legal authority is Pickering v.

Board of Education, 391 U.S. 563 (1968).

7.2) Violation of A.A.C. §R7-2-709(B): “2. Misconduct of the hearing body or the

prevailing party.” By direct violation by Appellee of due process by gross negligence and abuse

of discretion during the investigation phase, pre-trial phase, hearing phase, trial phase and motion

of rehearing phase Appellee has violated the Appellant’s constitutional rights in violation of 42

U.S.C. § 1983; A.R.S. § 12-1841; cf. The Supremacy Clause of the United States Constitution

(Article VI, Clause 2), U.S. Constitution Amendments 1st, 5th, 6th, 14th; Arizona Constitution

Article 2, § 4, 5, 6 and 32. Review of Appellant’s hearing on September 13, 2017, Appellant’s

trial on October 23, 2017 and Appellant’s motion for rehearing on February 26, 2018 and all

-7CASENO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

supporting documents and record of dates will prove a preponderance of evidence in favor of

Appellant to reverse in whole decision of AZSBE as Appellee.

7.3) Violation of A.A.C. §R7-2-709(B): “5. Excessive or insufficient penalties.” Appellee

has caused numerous damages by administrative decision against Appellant, by Appellant’s loss

of employment, loss of future employment, loss of graduation from graduate program, loss of

ability to repay TEACH grant by U.S. Department of Education, loss of financial ability for

financial obligations and responsibilities for daughters, canine pets and final internment of

Appellant’s maternal parent “mother,” intentional infliction of emotional distress in directly

witnesses hundreds of former students suffer severe emotional distress and finally intentional

infliction of emotional distress as a combat veteran and unnecessary added pressures of

professional development and preparations for current and near future duties as officer candidate

for U.S. Air Force Reserve under Department of Defense. This is a direct violation of the Eighth

Amendment (Amendment VIII) of the United States Constitution which prohibits the federal

government from imposing excessive bail, excessive fines, or cruel and unusual punishments.

7.4) Violation of A.A.C. §R7-2-709(B): “6. Error of law occurring at the hearing or

during the progress of the proceeding.” Appellee has violated Appellant’s right of “freedom of

speech” and “redress of grievances” by concurrence of complete ruling of U.S. Supreme Court in

Pickering v. Board of Education, 391 U.S. 563 (1968) that favors cause of Appellant in current

case before Hon. Patricia Ann Starr.

7.5) Violation of A.A.C. §R7-2-709(B): “7. That the findings of fact or decision is not

justified by the evidence or is contrary to law.” Appellant reference to both the context of ruling

and scope of application of ruling in favor of Appellant against Appellee in Pickering v. Board

of Education, 391 U.S. 563 (1968).

7.) “notice under Rule llfftk21

Appellant will provide future motion for rightful and proper monetary compensation that

is lawful within JRAD and is not a violation double jeopardy of Appellee’s constitutional

protection and right in reference to pending Arizona Superior Court case and United States Court

-8CASENO: LC 2018-000093-001

RAFAEL CEZAR DAN AM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

of District of Arizona case against Appellee by Appellant. Proper notification of federal case, has

been presented for judicial notice to Hon. Patricia Ann Starr.

8. Conclusion

Before Hon. Patricia Ann Starr Appellant prays judicial order in favor of cause of

Appellant by judicial order to reverse the decision in whole by authority of A.R.S. 12—911(A)

(5) of the Arizona Board of Education’s decision on October 23rd, 2017 in Case No. C-2016-585

ordering Revocation of Teaching Certificate and Notification to All States and Territories.

Appellant has suffered numerous damages of defamation to include loss of employment and

future employment, loss of graduation ability from Grand Canyon University College of

Education Master’s in Elementary Education Program with a G.P.A. of 3.9 and intentional

emotional distress by directly witnessing the emotional distress of hundreds former students from

Bullhead City Elementary School District and Heritage Elementary Charter School. A

scrutinized and thorough review of entire case and record by Hon. Patricia Ann Starr will

validate on its own objectively impartial review of record a preponderance of evidence in favor

of Appellant’s claim of gross negligence and abuse of discretion by Appellee. Appellant prays

Hon. Patricia Ann Starr to rule in favor of cause of Appellant to reverse decision of Appellee in

whole by authority of A.R.S. 12—911(A) (5).

Respectively submitted to

HON. PATRICIA ANN STARR, JUDGE

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

DATED: Friday, May 25th, 2018

RAFAEL CEZAR DANAM, Appellant (signed)

-9CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

A.R.S. Title 12 ■ Courts-and Civil Proceedings; Chaptor 13;

"I declare in the Cotmly

o mo

y of perjury that the foregoing is truo

(date)

ond correct-. Exocutod-ot

Affidavit-ef

Signature

NOTARY PUBLIC

§12»2221(B) The oath or affirmation may be administered by anyjttdge7<^effeopdoptrtycourt-of reGor-d, justice of-the pooco, notary public, roforoo or commissioner of a court of record

Signature

JRAD Form 8: Certification of Word Count

A.R.S. § 12-904(B)

The undersigned certifies that the brief/motion to which this Certificate is attached uses

type of at least 14 points, is double-spaced, and contains 2,808 words, [not including heading;

includes table of contents thru notary certification of Appellant, total word count of 3.081 of

entire Appellant Opening Brief]

The document to which this Certificate is attached does not/does exceed the word limit

that is set by JRAD Rule 8 as applicable (must not exceed 14,000 words).

The information provided in this Certification is true and complete.

DATED this 25th day of May 2018.

Rafael C. Danam, Appellant

- 10CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

ORIGINAL filed on this 25th day of May 2018 with:

Clerk of the Court

Maricopa County Superior Court

201 West Jefferson

Phoenix, AZ 85003

COPY of filed court documents mailed on this 25th day of May 2018 to:

Honorable Patricia Ann Starr, Presiding Judge

Maricopa County Superior Court

Old Courthouse #309

125 West Washington

Phoenix, AZ 85003

COPY of filed court documents emailed on this 25th day of May 2018 to:

Kim S. Anderson, State Bar No. 010584

Assistant Attorney General

State Government Division

Education and Health Section

2005 N. Central Avenue

Phoenix, AZ 85004

Email: kim.anderson@azag.gov

- 11 CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

APPELLANT OPENING BRIEF FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION (Administrative Review)

Rafael Cezar Danam

6104 W. Townley Avenue

Glendale, AZ 85302

E-mail: rafaeldanam@gmail.com

Telephone: (909) 297-9171 cellular

Appellant In Propia Persona “Noli Me Tangere ”

RAFAEL CEZAR DANAM,

Appellant.

CASE NO: LC 2018-000093-001

REDACTED

Vs.

DEPUTY CLERK

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

COURT STAMP

COURT CERTIFIED

04/26/2018

CHRIS DEROSE, CLERK

R. MALLARD

ARIZONA BOARD OF EDUCATION,

MOTION FOR NEW EVIDENCE AND

WITNESSES FOR JUDICIAL REVIEW OF

ADMINISTRATIVE DECISION

(Administrative Review)

HON. PATRICIA ANN STARR, JUDGE

Appellee.

1. MOTION FOR NEW EVIDENCE AND WITNESSES

Presented before Hon. Patricia Ann Star, Presiding Judge (Arizona Constitution, Article

6, § 26; A.R.S. §§ 38-231; cf. 28 U.S. Code § 453) Appellant moves the Court for New Evidence

and Witnesses for Judicial Review of Administrative Decision Case No. LC 2018-000093-001

pursuant to A.R.S. § 12-910 (A) (B), §§ 12-2201, 12-2261, Rules of Procedure for Judicial

Review of Administrative Decision Rule 10, to introduce exhibits and testimony not offered

during the Administrative Hearing in addition to the relevant and admissible exhibits and

testimony contained in the record of Arizona State Board of Education (AZSBE) filed in this

Court. The additional evidence sought to be introduced is described and the reasons why this

Motion may be granted are stated in the attached Memorandum of Points and Authorities.

Motion of new evidence and testimony by witnesses requires Judicial Subpoena Order A.R.S. §

12-2212 pursuant to Family Educational Rights and Privacy Act of 1974 (FERPA) reference to

34 C.F.R. § 99.3; 20 U.S.C. § 1232g (b) (1) (J) (i) and (ii), (b) (2) (B); 34 C.F.R. § 99.31(a) (9).

-1CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF

ADMINISTRATIVE DECISION

Respectively Submitted to

HON. PATRICA ANN STARR, JUDGE

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

DATED: Thursday, April 26th, 2018

RAFAEL CEZAR DANAM, Appellant (signed)

A.R.S. Title 12 - Courts and Civil Proceedings; Chapter 13; Article 3: Oath and Affirmation; §12-2221

"I declare in the County of Maricopa, State of Arizona under penalty of perjury that the foregoing is true

and correct. Executed on

(date).

Affidavit of

Signature

NOTARY PUBLIC

§12-2221(B) The oath or affirmation may be administered by any judge, clerk or deputy clerk of any

Signature

court of record, justice of the peace, notary public, referee or commissioner of a court of record.

-2CASENO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

MEMORANDUM OF POINTS AND AUTHORITIES Pages 4-8 OF THIS MOTION

ORIGINAL filed on this 26th day of April 2018 with:

Clerk of the Court

Maricopa County Superior Court

201 West Jefferson

Phoenix, AZ 85003

COPY of filed court documents mailed on this 26th day of April 2018 to:

Honorable Patricia Ann Starr, Presiding Judge

Maricopa County Superior Court

Old Courthouse #309

125 West Washington

Phoenix, AZ 85003

COPY of filed court documents emailed on this 26th day of April 2018 to: (ARCAP Rule 5)

Kim S. Anderson, State Bar No. 010584

Assistant Attorney General

State Government Division

Education and Health Section

2005 N. Central Avenue

Phoenix, AZ 85004

Email: kim.anderson@azag.gov

-3CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

Appellant.

CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM,

Vs.

ARIZONA BOARD OF EDUCATION,

MEMORANDUM OF POINTS AND

AUTHORITIES FOR

MOTION FOR NEW EVIDENCE AND

WITNESSES FOR JUDICIAL REVIEW OF

ADMINISTRATIVE DECISION

(Administrative Review)

Appellee.

HON. PATRICIA ANN STARR, JUDGE

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S

MOTION FOR NEW EVIDENCE AND WITNESSES

A.R.S. § 12-910 (A) (B) authorizes by JRAD Rule 10 (A) (B) provides Plaintiff

constitutional rights denied, ignored and omitted during the scope of the AZSBE Administrative

Hearing process during pre-hearing, hearing and post hearing/motion of appeal of AZSBE Case

C-2016-585 (ref. 42 U.S.C. § 1983; A.R.S. § 12-1841), which violated The Supremacy Clause of

the United States Constitution (Article VI, Clause 2), U.S. Constitution Amendments 1st, 5th, 6th,

14th; Arizona Constitution Article 2, § 4, 5,6 and 32 (Marbury v. Madison, 5 U.S. 137 (1803);

Martin v. Hunter's Lessee, 14 U.S. 304 (1816); Cohens v. Virginia, 19 U.S. 264 (1821);

Pennsylvania v. Nelson, 350 U.S. 497 (1956); Brown v. Board of Education of Topeka, 347 U.S.

483 (1954)), by excluding, omitting and/or prohibiting relevant facts by evidence and testimony

of witnesses directly provided by Appellant in original Administrative Hearing of AZSBE. To be

admitted for the record is the affidavit and witness testimony of

from

Diamondback Elementary School, Bullhead City Elementary School District (BCESD) #16 4th

Heritage

Grade Class 2016-2017;

Elementary Charter School (HES) 4th Grade Class 2017-2018, in addition testimony from parents

-4CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

, will provide factual evidence

that exonerates Appellant from AZSBE order against Appellant, Rafael C. Danam and expose

gross negligence and biased judgement of AZSBE order against Appellant. In addition, admitted

as evidence affidavit of

Diamondback Elementary School BCESD #16 4th Grade Class

2015-2016, affidavit of Rebecca Scott, BSN-RN/WARMC-ED.

Name: First and Last

Admittance of Affidavit and Testimony by Appearance

Affidavit and Testimony by Appearance

Testimony by Appearance (Affidavit in Original Record)

Testimony by Appearance

Affidavit Only

Rebecca Scott

Affidavit Only

To Be Determined by Judicial Subpoena

27 Parents & Students of Heritage Elementary

Charter School, 4th Grade 2017-2018

To Be Determined by Judicial Subpoena

25 Parents & Students of Diamondback Elementary

School, 4th Grade 2016-2017

NOTE: Judicial consideration to assign all costs of travel ofparents and students volunteering to

provide actual testimony as witnesses should be authorized against AZSBEfor costs, to include

planning ofparents and students to visit Phoenix Children’s Museum at 215 N 7th St, Phoenix,

AZ 85034, during presentation of witness testimonies during trial.

Judicial Subpoena Order provides opportunity for “ALL” students and parents of

Diamondback Elementary School BCESD #16 4th Grade Class 2016-2017 and Heritage

Elementary Charter School 4th Grade Class 2017-2018 to provide essential facts and truth

-5 CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

regarding negative effects of removal of Appellant as primary teacher of former students. In

addition opportunity exposes the mockery and unprofessional gross negligence exhibited by

Counsel for AZSBE during trial session of Administrative Hearing with concurrence by AZSBE,

AZSBE PPAC and AZSBE Investigative Unit. AZSBE individual members to include public

employees of AZSBE Professional Practices Advisory Committee (PPAC), AZSBE Investigative

Unit and counsel for AZSBE from AZ Attorney General Office. The burden of proof and

establishing a preponderance of evidence against Appellant has been utterly failed by the gross

negligence of Appellee AZSBE.

Primary authority is Pickering v. Board of Education, 391 U.S. 563 (1968), in which U.S.

Supreme Court ruled numerous errors by lower administrative and judicial venues of trial against

Plaintiff/Appellant Marvin L. Pickering. Admission of affidavits with additional affidavits and

testimony by parents and students of Diamondback Elementary School BCESD #16 4th Grade

Class 2016-2017 and HES 4th Grade Class 2017-2018 will provide a preponderance of evidence

exonerating Appellant and completely nullifying all negative allegations and charges rendered

against Appellant by AZSBE administrative decision and order, exposing gross negligence and

biased judgment of AZSBE. The Ninth Circuit previously held that certain types of gross

negligence can implicate [violation of] the Due Process Clause. See, e.g., Neely v. Feinstein, 50

F.3d 1502, 1507 (9th Cir. 1995) (“conscious indifference amounting to gross negligence”);

Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992); Estate of Conners v. O'Connor, 846

F.2d 1205, 1208 (9th Cir. 1988); see also Fargo v. City of San Juan Bautista, 857 F.2d 638, 641

(9th Cir. 1988). In addition, 42 U.S.C. §1983 imposes liability on one who, under color of law,

deprives a person of any “rights, privileges, or immunities secured by the Constitution and laws.”

Government officials performing discretionary functions receive qualified immunity from § 1983

actions unless their conduct violated a clearly established constitutional or federal statutory right

of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102

S.Ct. 2727, 73 L.Ed.2d 396 (1982); Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 532,

P.3d 320, 323 (2003).

-6CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

Appellee accepted perjured testimony A.R.S. § 13-2702(A) of witness (Ms. Laura

Kapusta) against Plaintiff without confirming credibility of testimony with (26) parents of 4th

grade class 2016-2017, affidavit and testimony provided by Plaintiff invalidating false and

perjured testimony submitted by Appellee/Defendant was presented officially before all entities

of the AZSBE to include PPAC and AZSBE Investigative Unit, “Knowing use of perjured or

false testimony by the prosecution is a denial of due process and is reversible error without the

necessity of a showing of prejudice to the defendant.” State v. Ferrari, 112 Ariz. 324, 334 (1975)

cf. Larsen v. Decker, 196 Ariz. 239, 241

6 (App. 2000).

Furthermore, gross negligence is defined as “a conscious, voluntary act or omission in

reckless disregard of a legal duty and of the consequences to another party, who may typically

recover exemplary damages.”1 Defendant failed their duty by acts of gross negligence by the

standard of judicial review for negligence:

Four elements are required to establish a prima facie case of negligence:

(1) The existence of a legal duty that the defendant owed to the plaintiff

(2) Defendant's breach of that duty

(3) Plaintiffs sufferance of an injury

(4) Proof that defendant's breach caused the injury (typically defined through

proximate cause)

-y

Appellant further validates purpose of motion because of the enormous harm against

former students that AZSBE has committed against, which affidavits and testimony of children

and parents will prove an abhorrent perpetration of uncompassionate, inconsiderate,

unprofessional gross negligence that demands justice by the trier of facts because of the harm

suffered by the emotional distress of children. Appellant pursues justice for the sake of former

1 Black’s Law Dictionary, 2009 ed

2 Cornell Law School, Legal Information Institute, Accessed 04/24/2018

https://www.law.comell.edu/wex/negligence

-7CASENO: LC 2018-000093-001

RAFAEL CEZAR DAN AM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

students under his care, “Unless someone like you cares a whole lot, nothing’s going to change.

It’s not. „3

CONCLUSION

Before Hon. Patricia Ann Starr, Presiding Judge, this motion for new evidence and

witnesses for testimony during judicial review of administrative decision is presented for

affirmation and authorizing of order approving motion by Plaintiff. Plaintiff confides judicial

prudence and scrutiny in application of law and trier of facts by Hon. Patricia Ann Starr,

confiding the judicial doctrine and practice of “Parens Patriae” of Family Court and Juvenile

Justice venue to the Administrative Review venue, “The proper role of the judiciary is one of

interpreting and applying the law...”U.S. Associate Justice Sandra Day O’Connor.4 Plaintiff has

had to apply diligence and perseverance in ensuring both exoneration and reversal of

Administrative Order of AZSBE be nullified and reversed with prejudice in the final review of

case before Hon. Patricia Ann Starr, “It is the individual who has acted or tried to act who will

not only force a decision but also have a hand in shaping it.” -Justice Sandra Day O’Connor5

Respectively Submitted to

HON. PATRICA ANN STARR, JUDGE

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

DATED: Thursday, April 25th, 2018

RAFAEL CEZAR DANAM, Appellant (signed)

3 Theodor Seuss Geisel, bka “Dr. Seuss” The Lorax (1971)

4 Sandra Day O’Connor, U.S. Associate Justice, U.S. Library of Congress, accessed 04/24/2018

https://www.loc.gov/item/2002715166/

5 Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice. Random House2003

ISBN-13: 978-0375509254

-8CASENO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR NEW EVIDENCE AND WITNESSES FOR JUDICIAL REVIEW OF ADMINISTRATIVE DECISION

COURT STAMP

Rafael Cezar Danam

6104 W. Townley Avenue

Glendale, AZ 85302

E-mail: rafaeldanam@gmail.com

Telephone: (909) 297-9171 cellular

Appellant In Propia Persona “Noli Me Tangere ”

IN THE SUPERIOR COURT OF THE STATE OF ARIZONA

IN AND FOR THE COUNTY OF MARICOPA

CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM,

Appellant.

Vs.

ARIZONA BOARD OF EDUCATION,

MOTION FOR RECONSIDERATION OF

RULING BY APPELLANT

(Administrative Review)

HON. PATRICIA ANN STARR, JUDGE

Appellee.

MOTION FOR RECONSIDERATION OF RULING

Presented before Hon. Patricia Ann Star, Presiding Judge (Arizona Constitution, Article

6, § 26; A.R.S. §§ 38-231; cf. 28 U.S. Code § 453) Appellant moves the Court for Motion for

Reconsideration of Ruling in Minute Entry dated May 17th, 2018, Ordering Denial of Motion for

New Evidence and Witnesses by Appellant. This request of reconsideration is authorized by Rule

7.1 Ariz. R. Civ. P. reference to Arizona Supreme Court No. R-17-0013 for JRAD.

1. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION

FOR RECONSIDERATION OF RULING

1.1) Per authorization of Arizona Supreme Court No. R-17-0013 for JRAD Appellant

requested extension of time for filing Motion for New Evidence and Witnesses noting applicable

rules of the court and direct quotation of JRAD Rule 2 (b): “(b) Enlargement of Time. The court

for good cause shown may shorten or extend the time for doing any act required by these rules or

-1 CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR RECONSIDERATION OF RULING BY APPELLANT

)

by A.R.S. §§ 12-901 to -914, except the court may not extend the time for the filing of a notice

of appeal.” Appellant provided references to law and court rules in addition to supporting facts

that proved cause of motion for new evidence and/or testimony before Hon. Patricia Ann Starr

for consideration of extension of time. Appellant believes opinion of judge in order did not apply

objective consideration of pertinent facts, circumstances and references to law and court rules

addressed in motion and reply motion of Appellant.

1.2) New Evidence and/or Witnesses on Appeal A.R.S. § 12-910(E). Appellant addressed

relevance of evidence and testimony of parents and students of former 4th grade class of 2016-

2017 at Diamondback Elementary School of BCESD #16 to negate the false testimony presented

during hearing, as noted in original motion:

Appellee accepted perjured testimony A.R.S. § 13-2702(A) of witness (Ms. Laura

Kapusta) against Plaintiff without confirming credibility of testimony with (26)

parents of 4th grade class 2016-2017, affidavit and testimony provided by Plaintiff

invalidating false and perjured testimony submitted by Appellee/Defendant was

presented officially before all entities of the AZSBE to include PPAC and AZSBE

Investigative Unit, “Knowing use of perjured or false testimony by the

prosecution is a denial of due process and is reversible error without the

necessity of a showing of prejudice to the defendant.” State v. Ferrari, 112 Ariz.

324, 334 (1975) cf. Larsen v. Decker, 196 Ariz. 239, 241 If 6 (App. 2000).

Plaintiff has already presented exhibit of affidavit by minor which testifies of the false statement

made by witnessed in addition to content of what actually occurred on September 21,2016. The

testimony of parents and students of noted former 4th grade class will prove testimony of

witnessed for Appellee was false.

Testimony and evidence of former 4th grade class of Heritage Elementary Charter School

will prove same situation occurred of emotional distress amongst former 4th grade students

without presence and/or any communication made by Appellant to address parents and students

-2CASE NO: LC 2018-000093-001

RAFAEL CEZAR DAN AM

Appellant

MOTION FOR RECONSIDERATION OF RULING BY APPELLANT

of leave from position as 4th grade teacher for 2017-2018. Appellant has presented relevant laws,

statutes and case law to substantiate Appellant’s motion.

Conclusion

Appellant presents motion for reconsideration of ruling by Hon. Patricia Ann Starr by

review of A.R.S. § 12-910 (A) (B). Appellant has presented reasons for admission of evidence

and testimony of witnesses due to gross negligence and abuse of discretion against Appellant

during administrative decision scope of entire proceedings.

Respectively Submitted to

HON. PATRICA ANN STARR, JUDGE

SUPERIOR COURT OF ARIZONA

MARICOPA COUNTY

DATED: Friday, May 25th, 2018

RAFAEL CEZAR DANAM, Appellant (signed)

A.R.S. Titio-l-2-»GourtsnndGivii Proceedingsr6hapter-l-3j-ATticie-3{-Qath-and Affirmation;-51

Tdeclare-in-the-Gounty-of-MaricoparState-of-Arii

ond correct. Executed on.................. .............

■under penalty-of-perjury-t hat-the foregoing-is true

(date).

Affidavit-^

Signature

NOTARY PUBLIC

§12r.2221(B) The oath or affirmation may be administered by a

court of record, justice of the pcaco, notary public, roforoo-or commissioner-of-a-cottrt-of-record

-3CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR RECONSIDERATION OF RULING BY APPELLANT

ORIGINAL filed on this 25th day of May 2018 with:

Clerk of the Court

Maricopa County Superior Court

201 West Jefferson

Phoenix, AZ 85003

COPY of filed court documents mailed on this 26th day of April 2018 to:

Honorable Patricia Ann Starr, Presiding Judge

Maricopa County Superior Court

Old Courthouse #309

125 West Washington

Phoenix, AZ 85003

COPY of filed court documents emailed on this 26th day of April 2018 to: (ARCAP Rule 5)

Kim S. Anderson, State Bar No. 010584

Assistant Attorney General

State Government Division

Education and Health Section

2005 N. Central Avenue

Phoenix, AZ 85004

Email: kim.anderson@azag.gov

-4CASE NO: LC 2018-000093-001

RAFAEL CEZAR DANAM

Appellant

MOTION FOR RECONSIDERATION OF RULING BY APPELLANT

-5CASENO: LC 2018-000093-001

RAFAEL CEZAR DAN AM

Appellant

MOTION FOR RECONSIDERATION OF RULING BY APPELLANT

APPENDIX C: Decision and Orders Arizona Board of Education

)

APPENDIX C

APPENDIX C: Decision and Orders Arizona Board of Education

APPENDIX C

APPENDIX C: Decision and Orders Arizona Board of Education

APPENDIX C

Arizona State Board of Education

1700 W. Washington Street

Executive Tower, Suite 300

Phoenix, Arizona 85007

(602) 542-5057

FAX (602) 542-3046

azsbe.az.aov

inbox@azsbe.az.qov

August 22, 2017

Sent via U.S.P.S. Certified Mail

# 7017 0530 0000 9196 6778

Rafael C. Danam

5635 Pasadena Rd

Fort Mohave, AZ 86426

RE: Rafael C. Danam

Case No. C-2016-585

Educator No. 471-3856

Dear Rafael C. Danam

You are hereby notified that the Professional Practices Advisory Committee has set the

following date, time and place for your complaint hearing.

DATE:

September 12, 2017

TIME:

9:00 a.m.

PLACE:

Arizona Department of Education Building

1535 W. Jefferson, Room 122

Phoenix, AZ 85007

Your attendance is strongly recommended. If all cases cannot be heard on September 12, the

PPAC chairman may decide to hear cases on September 13, 2017 as well.

If you have any questions about the time, or any other aspect of the proceeding, please contact

this office at (602) 542-5057.

Sincerely,

Alicia Williams

Deputy Director - Policy and Initiatives

State Board of Education

Attachments: PPAC MATERIALS

Board Members: President: Tim Carter Vice President: Lucas Narducci

Calvin Baker

Dr. Rita H. Cheng Dr. Daniel P. Corr Michele Kaye

Janice Mak Jared Taylor Patricia Welbom

Superintendent of Public Instruction: Diane Douglas

Executive Director Dr. Karol Schmidt

PROFESSIONAL PRACTICES ADVISORY COMMITTEE

INFORMATION SHEET

PPAC: September 12-13, 2017

Case Number: C-2016-585

Respondent: Rafael C. Danam

Investigator: D. Spelich

EIN: 471-3856

Reason for PPAC review:

Rafael C. Danam holds a Substitute certificate, which expires January 8, 2022.

From approximately September 1, 2015 through September 21, 2016, Mr. Danam was

employed as a Substitute teacher by the Bullhead City Elementary School District #15

(“BCESD”) located in Bullhead City, Arizona.

Beginning in August of 2016, Mr. Danam worked as a long-term Substitute teacher for a

4th grade class at Diamondback Elementary School (“Diamondback”) in the BCESD.

Respondent worked for a daily substitute rate of $90 per day, and was not under

contract.

In September of 2016, Martin Muecke, the Principal at Diamondback, decided to relieve

Mr. Danam of his long-term Substitute teacher assignment, due to a fully certified

teacher returning from medical leave ready to return to work.

On September 21, 2016, after a failed attempt to meet with Mr. Danam at a set date and

time, Mr. Muecke encountered Mr. Danam during lunch period. At that time, Mr. Muecke

informed Mr. Danam that he would be relieved of his Substitute teacher assignment with

the 4th grade class.

Mr. Danam then returned to his 4h grade classroom where he had been working, and

along the way he encountered Instructional Aide Laura Kapusta. Mr. Danam informed

Ms. Kapusta that he needed her to come into his classroom because he needed a

"witness”. Ms. Kapusta followed Mr. Danam into the classroom.

Mr. Danam then informed his students that he would not be their teacher anymore. Mr.

Danam became very emotional and then began to cry. Mr. Danam also told the students

to go home and tell their parents what Mr. Muecke and the school had done to him, and

to have their parents go to the district and tell them how unfair it was.

Due to what had transpired, the students also became emotional and began to cry as

well. Mr. Muecke arrived shortly after and directed Mr. Danam to go home immediately.

Mr. Danam then went to BCESD district offices, where he met with Benje Hookstra, then

Assistant Superintendent, Mr. Hookstra expressed to Mr. Danam that he was aware of

the situation that had taken place, and that he supported Mr. Muecke's decision.

On September 22, 2016, Mr. Hookstra filled out and signed an "Employee Separation

Form . indicating that Mr. Danam was being involuntarily terminated due to

“Unsatisfactory Work Performance” and "Non Compliance with Rules".

Shortly after being relieved of his Substitute teacher assignments, Mr. Danam began an

email campaign directed against Mr. Muecke, and Mr. Hookstra. The emails included

demands for hearings and investigations regarding Mr. Muecke and Mr. Hookstra, and

threats of civil lawsuits against Mr. Muecke and Mr. Hookstra.

In some of the emails, Mr. Danam tried to recruit parents to file complaints against Mr.

Muecke and Mr. Hookstra with such entities as the BCESD, the police, the Arizona State

Board of Education. Mr. Danam expressed to parents his intentions to file lawsuits

against Mr. Muecke and Mr. Hookstra and that he.would give some of the money

received from the lawsuits to their children.

On or about September 27, 2016, Mr. Danam sent a one-page fax to various schools in

BCESD, including Diamondback. The heading of the fax was "Justice, Vindication and

Vengeance”, the fax included a footnote at the bottom of the fax in Latin, which

translates to “Vengeance is MINE, I will repay.”

On September 28, 2016, Mr. Muecke filed for an Injunction Against Workplace

Harassment against Mr. Danam with the Bullhead City Municipal Court. The injunction

was granted on that day.

On October 6, 2016, at a hearing that Mr. Danam requested in regard to the Injunction,

the Bullhead City Municipal Court ordered that the Injunction would remain in effect. The

Injunction remains in effect to date.

On October 13, 2016, Investigator David W. Spelich of the Investigative Unit of the

Arizona Department of Education sent a "Notice of Investigation” letter to Mr. Danam.

In an eight-page document dated October 14, 2016, Mr. Danam acknowledged having

received the letter from Mr. Spelich, and offered written responses to the allegations.

On October 14, 2016, Investigator Spelich interviewed Mr. Danam.

On March 10, 2017, Mr. Danam submitted an application for employment as a teacher in

the Laveen Elementary School District (“LESD”).

On the application form, Mr. Danam answered “No” to the question “Have you ever been

the subject of a school district or Department of Education (in any state) investigation,

inquiry, or review of alleged misconduct?”

On April 11, 2017, Mr. Danam was hired as a teacher by LESD for the 2017-2018

schoolyear beginning July 24, 2017.

On May 16, 2017, Holly King, LESD Human Resources Certified Specialist, was notified

that Mr. Danam was under investigation by the Arizona Department of Education.

On May 17, 2017, Ms. King and the Assistant Superintendent of Human Resources, Dr.

Jeffrey Sprout, spoke with Mr. Danam to provide due process regarding the answer of

No to the question ‘ Have you ever been the subject of a school district or Department

of Education (in any state) investigation, inquiry, or review of alleged misconduct?” on

his employment application.

On May 18, 2017, Dr. Sprout, Ms. King and Mr. Danam spoke again, and Mr. Danam

requested to resign, then submitted a letter of resignation to LESD via email.

Possible Rule violations:

R7-2-1308(A)

Certificate holders shall:

(1) Make reasonable efforts to prevent pupils from conditions harmful to learning,

health, or safety.

R7-2-1308(B)

Individuals holding certificates issued by the Board pursuant to R7-2-601 et seq. and

individuals applying for certificates issued by the Board pursuant to R7-2-601 et seq.

shall not:

(15) Engage in conduct which would discredit the teaching profession

(6)

Falsify or misrepresent documents, records, or

facts related to professional qualifications or educational history or

character.”

;

Complaint & Exhibits

•i

KAROL SCHMIDT

EXECUTIVE DIRECTOR

STATE BOARD OF EDUCATION

1700 W. Washington St., Suite 300

Phoenix, Arizona 85007

Complainant

5, MARK BRNOVICH

6 ARIZONA ATTORNEY GENERAL

Firm Bar No. 14000

Erie Schwarz, Stale Bar No. 013402

Assistant Attorney General

Education and Health Section

1275 West Washington Street

Phoenix, Arizona 85007-2926

Telephone: (602) 542-2284

Fax: (602) 364-0700

E-mail: EducationHealth@azag.gov

Attorneys for the State of Arizona

BEFORE THE ARIZONA STATE BOARD OF EDUCATION

THROUGH THE PROFESSIONAL PRACTICES ADVISORY COMMITTEE

In the Matter of:

RAFAEL DANAM,’

Case No. C-20I6-585

COMPLAINT

Holder of Arizona Education Certificate^),

Educator Identification No, 471-3856,

Respondent.

1. JURISDICTION

This Complaint is prepared, and these proceedings are instituted, pursuant to Arizona

Revised Statutes (“A.R.S.”) § 15-203(A)( 14) and (20).

II. PARTIES

The Arizona State Board of Education (“Board”) is the duly constituted authority

that supervises and controls the certification of persons engaged in instructional work in Arizona

public educational institutions below the community college, college, or university level.

Rafael Danam (“Respondent”) holds State of Arizona certificate^) under Educator

Identification No. 471-3856.

m. FACTUAL ALLEGATIONS

Respondent holds a Substitute certificate, which expires January 8, 2022.

From approximately September l, 2015 through September 21, 2016, Respondent

was employed as a Substitute teacher by the Bullhead City Elementary School District #15

(“BCESD”) located in Bullhead City, Arizona.

Beginning in August of 2016, Respondent worked as a long-term Substitute

teacher for a 4th grade class at Diamondback Elementary School (“Diamondback”) in the

BCESD, While working in that position, Respondent did not have a contract and he was paid

the daily rate for a Substitute teacher, which was $90.

In September of 2016, Martin Muecke, the Principal at Diamondback, decided that

he was going to relieve Respondent of his long-term Substitute teacher assignment because

another Diamondback teacher who had been out on medical leave, but who was fully certified

and not just certified as a Substitute, was ready to return to work.

Mr. Muecke attempted to arrange a meeting with Respondent for 4:00 p.m. on

September 21, 2016, at which time he was going to inform Respondent that he was being

relieved of his Substitute teacher assignment with the 4th grade class. However, Respondent

informed Mr. Ivfucckc that he would not be able to attend a meeting at that time.

Mr. Muecke then encountered Respondent during the lunch period on September

21, 2016, shortly after noon, and at that, time Mr. Muecke informed Respondent that he was

being relieved of his Substitute teacher assignment with the 4th grade class.

Respondent then headed back to the 4th grade classroom where he had been

working, and along the way he encountered Instructional Aide Laura Kapusta. Respondent told

Ms. Kapusta that iie needed her to come into his classroom because he needed “a witness”, and

Ms. Kapusta followed Respondent into the classroom.

The 4th grade students were already inside the classroom, and Respondent began

speaking to the students while Ms. Kapusta observed. Respondent told the 4th grade students

that he would not be their teacher anymore, and he became very emotional and began to cry.

Respondent also told the students that he wanted them to go home and tell their parents what

Mr. Muecke and the school had done to him and to have their parents go to the district and tell

them how unfair this was.

lhe students became very upset after hearing'Respondent’s statements and seeing

him ciying, and they began crying too. Mr, Muecke soon arrived in the classroom and told

Respondent to go home immediately. After Respondent left, Diamondback staff began trying

to calm the students down and to help them regain their composure.

10.

Respondent then went to the BCESD district offices and met with Benje Hookstra,

who was the BCESD Assistant Superintendent at the time. Mr. Hookstra informed Respondent

that he was aware that Mr. Muecke had relieved Respondent of his Substitute teaching

assignment and that he .supported Mr. Muecke’s decision.

11.

Separation boim

On September 22. 2016, Mr. Hookstra filled out and signed an “Employee

for Respondent indicating that Respondent was being involuntarily

terminated. The Involuntary Termination Codes cited by Mr. Hookslra on that form were

“Unsatisfactory Work Performance" and “Non Compliance with Rules”.

12.

Shortly after he was relieved of his Substitute teaching assignment by Mr.

Muecke, Respondent embarked on an email campaign against Mr. Muccke and Mr, Hookstra

that included emails sent to Mr. Muecke and Mr. Hookstra, as well to BCESD personnel,

Bullhead City officials, Bullhead City community leader, and parents of Diamondback students.

Included in those emails were demands for hearings and investigations regarding Mr. Muecke

and Mr. Hookstra, and threats of civil lawsuits against Mr. Muecke and Mr. Hookstra.

13.

Among the emails that Respondent sent to parents of Diamondback students,

Respondent .attempted to recruit parents to file complaints against Mr. Muecke and Mr.

Hookstra with such entities as the BCESD, the police, and the Arizona State Board of

Education. Additionally. Respondent told parents that he was going to file lawsuits against Mr.

Muecke and Mr, Hookstra and that he was going to give some of the money he received from

the lawsuits to their children. Respondent even suggested to parents that they could receive

large cash payments if a class action lawsuit was filed.

14.

Some excerpts from emails Respondent sent to parents of Diamondback students

include the following [quotations typed as written]:

i am convinced upon thorough investigation serious violations on the part of

Martin Muecke and Benji Hookstra will reveal corrupt and unprofessional

practices directly violating principles of the United States Constitution and

Laws and of The Constitution of the State of Arizona and Laws.”

b. “Additional amended request in accordance with discovery procedures,

proceedings in preparation of legal litigation and potential criminal and civil

prosecution air formally in process against Martin Muecke and Benji Hookstra.

•s..

As civilians and authorities to your children I request you motion to Governing

Board of Bullhead City Elementary SD the suspension of Martin Muecke and

Benji Hookstra until completion of thorough process review of facts, evidence

and proof admissible to Superior Court of Arizona.”

c. “1 have been specifically askes to assist with required procedures in initiating

official complaint . . . Parents you are authorized to officially request Peace

Officers identified to initiate official report.”

d. “Parents it is highly recommended you are educated on compensation your

child can be awarded from a civil lawsuit via CLASS ACTION LAWSUIT

FIRM representing your collective interest for your child’s emotional distress

and psychological damages.

$100,000.00 to over $1,000,000.00-plus of monetary damages. . . . PLEASE

review this email with scrutiny and thoroughness and I pray you are a diligent

advocate for your child.”

Estimation of collective award can be from

e. “I am officially aware by multiple accounts by parents that my current and last

years 4th grade students are in serious emotional distress, my encouragement

is get a medical record via doctor appointment for emotional and psychological

distress, than as a parent to parent love them as you do. There are I believe

over 200+ students from Diamondback Elementary School experience this

which should be an immense warning sign something very bad happened. I

would email all these individuals and keep records the way this is going the

State of Arizona will investigate as soon as you the parents file complaints.

For emails for immediate action email the following: [email addresses for

Mayor of Bullhead City; Superintendent of BCESD; Manager of Bullhead

2.6

City; Police detective] These people should give you all direct: resources for

official and forma) complaint that warrants thorough investigation.”

f. “NOTE: I have initiated a complaint already, every parent should finalize

official action by submitting investigation request.”

g. “(3) Affidavits & Official Statements required for my defense and future civil

lawsuits: I have obtained Affidavits from prior and present 4th grade student

parents.

equality/equity under the law is applied to the malicious illegal actions of

representatives of BCESD #15. The Affidavit attached for those completing

!()

needs to be completed by WEDNESDAY, OCTOBER 5, 201.6 at 12 noon so I

can register and submit my case. (4) Remaining legal and investigation actions

will include: State Board of Education Arizona, civil lawsuits by Mr. Danam

against BCESD # 15, Martin Muecke & Benje Hookstra.”

I am requesting additional for support to ensure justice and

h. “(2) I am aware some parents are uncomfortable getting involved, but I must

emphasize not only was your child directly affected to cause ‘emotional

distress’ and ‘psychological injury’ resulting in profuse tears (a lot of crying),

that has affected your child’s health, and it is estimated that. 200 -300 of the

600+ students at Diamondback Elementary' School suffered crying and

depression because of the illegal actions of Martin Muecke & Benje Hookstra.

... (6) Those completing Affidavits, 1 need them tomorrow, Wednesday,

October Sth, 2016 by' 12 noon so I can file with court. THANKS!!! RAFAEL

DANAM, The Jedi Master/Ninja Turtle”

15.

In a 23-page attachment to an email that Respondent sent to numerous individuals,

including Mr. Muecke and Mr. Hookstra, on September 24, 2016, Respondent devoted an entire

section to directly addressing Mr. Muecke and Mr. Hookstra. Respondent began that section

with the salutation “TO MARTIN MUECKE & BENJi HOOKSTRA”, and in that section

Respondent wrote, in part, the following (quotations typed as written]:

a. ‘‘Your personal and concurring collective actions, that have resulted in current

circumstances are the direct consequence of your actions, as prescribed by the

omnipotent standards of ethics, morals and professional conduct the Founding

Fathers of the United States of America often alluded to in persona! and public

discourse citing the providential text of the Scripture, ‘Whoever sows injustice

reaps calamity...’ (Proverbs 22:8, NIV)

b. “Be assured that exact and precise justice will be manifested ....”

c. “You will not escape the consequences you have permeated by removing all

internet access via my BCESD #15 assigned email domain

d. “Be assured my resolve is as solid as Plymouth rock and I will endeavor to

right the wrongs you both have instigated and perpetrated against a citizen and

veteran of innocent virtues and ambitions ....”

The emotional distress and harm you have caused minors in your care is

utterly reprehensible and worthy of the severest consequences to include your

own termination from Bullhead City Elementary School District #15.”

Lasciate ogne speranza, voi ch’nitrate.” [Which, according to Respondent’s

footnote, translates to “abandon ali hope, ye who enter here”]

16.

On or about September 27, 2016, Respondent sent a one-page fax to various

schools in BCESD. including Diamondback. That document states, in part [typed as written]:

Justice, Vindication & Vengeance “Justitia, Vindicatia Et Vindicta” : Lesson 1

For

Martin Muecke “Actus Reus * & Benjie Hookstra “Actus Reus”

References:

“EST ENIM MIHI VWDiCTAM EGO RETRIBUAM DJ.CIT DOMINUS”

According to a footnote Respondent included at the bottom of that document, the phrase that

begins "EST ENIM MIHI...” translates to “Vengeance is MINE, I. will repay.”

17.

Mr. Muecke and Mr. Hookstra felt threatened by Respondent’s statements in the

email and fax described in paragraphs 15 and 16 above, and on September 28, 2016 Mr. Muecke

went to the Bullhead City Municipal Court and filed for an Injunction Against Workplace

Harassment (“Injunction”) against. Respondent. That Injunction was granted on September 28,

2016, and Respondent then requested a hearing regarding the Injunction.

18.

After a hearing in Bullhead City Municipal Court on October 6, 2016, at which

Respondent appeared, the Court ordered that the Injunction would remain in effect. To date,

that Injunction is still in effect.

19.

On October 13, 2016, Investigator David W, Spelich of the Investigative Unit of

the Arizona Department of Education sent a “Notice of Investigation” letter to Respondent

notifying Respondent that he was the subject of an investigation of alleged misconduct. I'he

letter states, in part [typed as written]:

The Investigative Unit is investigating allegations that on 21 Sep. 2016, you

inflicted emotional distress on your class by involving them in a private

employment matter. It is further alleged that on the 24th and 28th Sep. 2016,

you sent threatening and menacing letters to the school faculty and

administration putting them in fear of their lives. The allegations states that

you may have acted in an unprofessional manner in violation of the

standards of conduct set by the Arizona State Board of Education

(“Board”). See Arizona Administrative Code R.7-2-1308.

This letter is to inform you that the Investigative Unit of the Arizona

Department of Education (“Department”) is presently conducting an

investigation into this matter. After a comprehensive review of this matter,

the Department may pursue disciplinary action against your certificate,

20.

Respondent received that October 13, 2016 “Notice of Investigation” letter. In an

eight-page document dated October 14, 2016, Respondent acknowledged having received the

October 13, 2016 letter, and he offered written responses to the allegations contained in the

October 13, 2016 letter.

21.

On October 14, 2016, Investigator Spelich interviewed Respondent regarding the

investigation.

22.

On March 10. 2017, Respondent submitted an application for employment as a

teacher in the Laveen Elementary School District (“LESD”).

a. On that application form. Respondent answered “No” to the question “Have

you ever been the subject of a school district or Department of Education (in

any state) investigation, inquiry, or review of alleged misconduct?”

b. Respondent affirmed his agreement with ail of the terms contained in the

LESD application form, including the following: “I affirm that all information

set forth in this application is accurate., truthful and complete. ... In the event

that I am employed by the District and in the further event that I have provided

false or misleading information in this application or in subsequent

employment interviews, I understand that my employment may be terminated

at any time after the discovery of the false or misleading information.”

23.

On April ! I, 2017, Respondent was hired as a teacher by LESD for the 20i7-2018

schoolyear beginning July 24, 2017 and ending May 24, 2018. The Certified Employment

Contract that Respondent signed on April H, 2017, for the 2)17-2018 schoolyear contains the

following provision: “Teacher affirms that all Teacher’s rep'esentations in this Contract, the

Teacher s employment application, and any other document or oral statement submitted to the

District concerning qualifications, fitness to teach, and representations about arrest and

conviction record are true and accurate.”

24.

On May 16, 2017, Holly King, LESD Human Resources Certified Specialist , was

notified that Respondent was under investigation by the Arizona Department of Education.

25.

On May 17, 2017, Ms, King and Dr. Jeffrey Sprout, LESD Assistant

Superintendent of Human Resources, spoke with Respondent to provide due process regarding

Respondent’s answer of “No” to the question “Have you ever been the subject of a school

district or Department of Education (in any state) investigation, inquiry, or review' of alleged

misconduct?” on his employment application.

26.

On May 18, 2017, Dr. Sprout, Ms. Kina, and Respondent spoke again, and

Respondent requested to resign. Respondent submitted a letter of resignation to LESD v ia emai l

on May 18, 2017.

IV. LEGAL AUTHORITY

Pursuant to A.R.S. § 15-203(A)(i4) and (20), the Board has the authority to

supervise and control the certification of teachers and to “(i mposc such disciplinary action,

including the issuance of a letter of censure, suspension, suspension with conditions or

i evocation ol a certificate, upon a finding of immoral or unprofessional conduct .”

Pursuant

Arizona

Administrative

Code

(“A.A.C.”)

R7-2-1308(C),

“[individuals found to have engaged in unprofessional,or immoral conduct shall be subject to,

and may be disciplined by, the Board.” Certificate holders who violate A.A.C. R7-2-1308 are

deemed to have engaged in immoral or unprofessional conduct.

In deciding whether a teacher’s conduct is immoral or unprofessional, such that

disciplinary action may be imposed, (he Board must determine whether such conduct “relatejsj

to his/her fitness as a teacher and ... ha[s] an adverse effect on or within the school community.”

Winters v. Ariz. Bci. of Ed., 207 Ariz. 173. 178, 83 P.3d 1314, 1119 (2004). Such adverse effect

need not have caused actual harm; the Board may act “to prevent or control predictable future

harm.” Welch v, Bd. of Ed. of Chandler Unified School Dist. No. 80 ofMaricopa Cty., 136 Ariz.

552, 555. 667 P.2d 746, 749 (1983). Moreover, “[tjhere may be conduct which by itself gives

rise to reasonable inferences ol unfitness to teach or from which an adverse impact on students

can reasonably be assumed.” Id.

A.R.S. § 15-512(N) states: “A person who makes a false statement, representation

or certification in any application for employment with the school district is guilty ol' a class 3

misdemeanor.”

V,.. ALLEGATIONS OF UNPROFESSIONAL CONDUCT

The conduct and circumstances described above constitute unprofessional conduct

pursuant to A.A.C. R7-2-1308(A)(1), which states that certificate holders shall “[mjaJke

reasonable efforts to prevent pupils from conditions harmful to learning, health, or safety,”

The conduct and circumstances described above constitute unprofessional conduct

pursuant to A.A.C. R7-2-1308(B)(6), which states that certificate holders shall not “ffjalsify or

misrepresent documents, records, or facts related to professional qualifications or educational

history or character.”

The conduct and circumstances described above constitute unprofessional conduct

pursuant, to A.A.C. R.7-2-1308(B)(13), which states that certificate holders shall not :‘[e]ngage in

conduct which would discredit the teaching profession.” Therefore, pursuant to A.R..S. § 15-

203(A)(20; and A.A.C. R7-2-1308(C), Respondent is subject to disciplinary action by the

Board.

WHEREFORE, based upon the foregoing, the State Board of Education seeks

disciplinary action - which may include a letter of censure, suspension, suspension with

conditions, or revocation - against any and all certificates held by Rafael Danani.

DATED this 21$... day of

Karol Schmidt

Executive Director

' 26

. 2017.

STATE’S INITIAL LOST OF WITNESSES

The State reserves the right to caii other individuals as witnesses in addition to the following:

1- MaEUB—Muecke, Principal, Diamondback Elementary School, Bullhead City

Elementary School District #15, in expected to testify regarding his involvement in

this case.

2. .BejiieJiopkstra, Superintendent, Bullhead City Elementary- School District #15, is

expected to testify regarding his involvement in this case.

3. Laura.Kapusta. Instructional Aide, Diamondhack Elementary/ School, Bullhead City

Elementary School District #15, is expected to testify regarding her involvement in

this case.

4. Kristen Dcgjer, Parent of Diamondhack Elementary School student, is expected to

testify regarding her involvement in this case.

5. Jeffrey Sprout, Assistant Superintendent of Human Resources, Laveen Elementary

School District, is expected to testify regarding his Involvement in this case.

6- DayidSp..ejich, Investigator for the Arizona Department, of Education, is expected to

testify regarding the investigation of the allegations contained in this Complaint.

2- Garnett ..Winders, Chief Investigator for the Arizona Department of Education, is

expected to testify regarding the investigation of the allegations contained in this

Complaint.

EafgsLDanam is expected to testify regarding his involvement in this case.

9. Any witness listed by Respondent.

Witness contact information may be obtained through David Spelich, who may be reached at the

Arizona Department of Education, Investigative Unit, telephone number 602-542-2972.

STATE’S INITIAL LIST OF EXHIBITS

The following is a list of Exhibits which the State may submit at Hearing (the State reserves

the right to supplement Exhibits after the filing of this Complaint):

Screenshot detailing Respondent’s Arizona Teaching Certificate(s)

Applicant/New Hire or Rehire form for Respondent

Employee Separation Form for Respondent

September 21, 2016 4:41 PM email from Respondent with Subject “Notice for

Request Board Hearing/Pre Court Civil Proceedings”

Request for Authorized &. Sanctioned Board Review for Wrongful Termination”

Termination”, plus 23-page attachment

Elementary School BCESD # 15"

10.

September 27, 2016 7:00 AM email from Respondent with heading “Honorable

Mayor Tom Brady & Respective Officials & Parents of 4th Grade Diamondback

September 25, 2016 10:53 AM email from Respondent with heading “Official

Request for Authorized & Sanctioned Board Review for Wrongful Termination”

September 24, 2016 7:55 AM email from Respondent with Subject “AMENDED

Official Request for Authorized & Sanctioned Board Review for Wrongful

September 24, 2016 5:29 AM email from Respondent with heading “Official

Request for Authorized & Sanctioned Board Review for Wrongful Termination”

September 23, 2016 2:46 PM email from Respondent with heading “Official

September z8.

2016 !!:49 AM email from Respondent with heading

“IMPORTANT PARENTAL REVIEW REQUESTED”

11.

September 28,

2016 12:32 PM email from Respondent with heading

“IMPORTANT PARENTAL REVIEW REQUESTED”

12.

IMPORTANT PARENTAL REVIEW REQUESTED”

13.

14.

15.

I wo copies of one- page document with heading "Justice, Vindication &

Vengeance Uustitia, Vindicatia Et Vindicata’ : Lesson 1”

16.

October 4, 2016 10:10 AM email from Respondent, with Subject “Re: Notice of

Court Hearing & Pending Court Actions & Investigations”

October 3, 2016 11:18 AM email from Respondent with Subject “Notice of Court

Hearing & Pending Court Actions & Investigations”

September 28, 2016 2:04 PM email from Respondent with Subject “Re:

September 28. 2016 Injunction Against Workplace Harassment issued in Bullhead

City Municipal Court Case No. M-842-CV-201600419, and related documents

17.

October 6, 2016

Hearing Order regarding Injunction Against Workplace

Harassment in Bullhead City Municipal Court Case No. M-842-CV-201600419,

and related documents

18.

Department of Education Investigator David W. Speiich

19.

Eight-page “Plainliff/Defendant Response to Notice of Investigation, Dated

October 13. 2016” prepared by Respondent and dated October 14, 2016

20.

October 13, 2016 Notice of Investigation letter sent to Respondent by Arizona

Certified Employment Contract with Laveen Elementary School 'District No. 59

signed by Respondent on April 11,2017

21.

May 24, 2017 letter from Jeffrey C. Sprout. Laveen Elementary School District

Assistant Superintendent of Human Resources, to Garnett Winders along with

Appendices A-D attached to the letter

22.

Any exhibit disclosed by Respondent

ORIGINAL of the foregoing

filed this 21st day of August, 2017,

with:

Arizona State Board of Education

1700 W. Washington St., Suite 300

Phoenix, Arizona 85007

EXECUTED COPY of the foregoing mailed certified mail

this 22nd day of August, 2017, to:

Rafael Danam

Respondent

EXECUTED COPY of the foregoing mailed

this 22nd day of August, 2017, to:

Erie Schwarz

Assistant Attorney General

Arizona Attorney General’s Office

Education and Health Section

1275 West Washington Street

Phoenix, Arizona 85007

Attorneys for the State of Arizona

Doc I’HX# 6146021

APPENDIX D: Review of Litigation U.S. District Court of Arizona

APPENDIX D

<rj

Case 2:18-cv-01493-DGC Document 40 Filed 05/31/19 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Rafael Cezar Danam,

Plaintiff,

Arizona Board of Education, as individual

members of the Arizona Board of Education,

No. CV-18-1493-PHX-DGC

ORDER

Defendants.

Pro se plaintiff Rafael Cezar Danam filed this action against the 18 members of the

Arizona Board of Education, asserting various state and federal claims and seeking more

than $2 million in damages. Doc. 25. Defendants have moved to dismiss Plaintiffs first

amended complaint on several grounds. Doc. 36. The motion is fully briefed. Docs. 37,

39. As explained below, Plaintiff must respond to this order by July 16, 2019.

Background.

Neither Plaintiffs first amended complaint nor his response to Defendant’s motion

clearly explain the relevant factual background for his claims. Defendant notes that

Plaintiffs “claims appear to arise out of the Board’s investigation and subsequent

revocation of Plaintiff s teaching license.” Doc. 36 at 2. An exhibit attached to Plaintiffs

original complaint also refers to his termination and the revocation of his substitute teacher

certification. Doc. 1 at 9.

III

AUTHENTICATED

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Case 2:18-cv-01493-DGC Document 40 Filed 05/31/19 Page 2 of 7

Discussion.

Defendants assert that Plaintiff failed to properly serve all Defendants; Plaintiff fails

to state a claim under Rule 12(b)(6); any defamation claims based on events before

May 16, 2017 are barred by the statute of limitations in A.R.S. § 12-541; Defendants have

absolute immunity pursuant to A.R.S. § 12-820.01 for state law claims against them; and

Defendants are not liable for punitive damages.

Rule 4 governs service of the complaint and summons on parties. Rule 4(m)

provides that if “a defendant is not served within 90 days after the complaint is filed, the

court - on motion or on its own after notice to the plaintiff - must dismiss the action without

prejudice against that defendant or order that service be made within a specified time. But

if the plaintiff shows good cause for the failure, the court must extend the time for service

for an appropriate period.” Fed. R. Civ. P. 4(m). Thus, “Rule 4(m) requires a two-step

analysis in deciding whether or not to extend the prescribed time period for the service of

a complaint.” In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). “First, upon a showing

of good cause for the defective service, the court must extend the time period. Second, if

there is no good cause, the court has the discretion to dismiss without prejudice or to extend

the time period.” Id.; see also Tagata v. Schwarz Pharma., Inc., No. CV 14-2238-TUC-

JAS, 2014 WL 12642791, at *1 (D. Ariz. Dec. 8, 2014).

Failure to Serve all Defendants.

Defendants assert that the Court must dismiss this action because Plaintiff failed to

serve a summons on Defendant Douglass and failed to personally serve the remaining 17

Defendants within 90 days of filing his complaint on May 16, 2018. Doc. 36 at 3-4.

Plaintiff has not filed notices of service as required by Rule 4(1), and his response to the

motion is unclear. He states that the record shows “obstruction of justice” by Defendants

in receiving service, but he also seems to argue that he executed proper service. Doc. 37

at 8-9. Plaintiff also requests an “extension for confirmation of service by Fed. R. Civ. P

(m)” without explanation. Id. at 9. Plaintiff has failed to show that he properly served

Defendants under Rule 4, and the Court will order Plaintiff to show good cause why an

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extension should be granted and this action should not be dismissed for lack of service.

Doc. 37 at 8-9.

One of Plaintiff s pending motions states that he is now out of the country for the

month of June 2019 on active military duty, and the Court will not require Plaintiffs

showing of good cause during that time. But the Court notes that this is the third time

Plaintiff has filed a notice of active military service for the U.S. Air Force Reserve since

the beginning of this case. See Doc. 7 (orders from May 17, 2018 to October 15, 2018);

Doc. 21 (November 4, 2018 to March 30, 2019).

The Court has taken several steps to confirm that Plaintiff currently is a reserve

member of the U.S. Armed Forces. Between April 26 and May 2, 2019, the Court’s staff

placed 15 calls to various numbers at Nellis Air Force Base. Five calls were placed to

Chief Master Sergeant Andy Weeks, as identified in the letter filed by Plaintiff at Doc. 7,

page 5. The Court also attempted to locate Colonel Raymond Tsui, whose signature

appears on the same letter, but no number was available for him. Phone calls were made

to and messages left for the First Sergeant of the 555 RHS, and no call was returned. Phone

calls were made to and messages left for the First Sergeant of the 820th (the public affairs

office and the base operator at Nellis Air Force Base identified the 820th as the unit to

which the 555 RHS was assigned), and no call was returned. The individual answering the

phone at the main number for the 820th had no knowledge of anyone with the last name of

Danam currently assigned to the 555 RHS. Another person at the 820th, apparently named

“Snyder,” also confirmed no knowledge of a current member by the name of Danam. Calls

were placed to the Legal Office at Nellis Air Force Base as well as the Reserve Legal Office

at Nellis Air Force Base, but were not returned.

Other than Plaintiffs own assertions and the letter he filed, the Court has no clear

evidence, and has been unable to confirm, that he is on reserve status or is deployed.

Absent such evidence, the Court will not continue to prolong this litigation, especially

given that Plaintiff has failed to show that Defendants have been served and are properly

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parties to this case. By Tuesday, July 16, 2019, Plaintiff must provide proof that he is on

reserve status and has been deployed during the periods he has stated to the Court.

A successful motion to dismiss under Rule 12(b)(6) must show either that the

complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its

theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint

that sets forth a cognizable legal theory will survive a motion to dismiss as long as it

contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (citing BellAtl. Corp. v. Twombly, 550 U.S.

544, 570 (2007)). 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.” Id., 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

Dismissal Under Rule 12(b)(6).

Failure to State a Claim.

Defendants assert that Plaintiffs complaint fails to identify specific factual bases

that Defendants could admit or deny, and only lists legal conclusions. Doc. 36 at 3. The

Court agrees. Plaintiffs first amended complaint includes almost no factual allegations

related to his claims. See Doc. 25. Rather than setting out a “short and plain statement of

the claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(1), Plaintiffs

14-page complaint quotes extensively from various federal, state, and international law

sources, but fails to plead specific factual allegations supporting his claims.

The caption and substance of Plaintiffs complaint seem to identify 42 U.S.C.

§ 1983, federal and state defamation statutes, and the First, Fifth, Sixth, and Fourteenth

Amendments as the principal bases for his action. Doc. 25 at 1-5, 7-10. He also cites

Article 2, §§ 4-6 and 32 of the Arizona Constitution. Id. at 2-3.

To state a claim under § 1983, Plaintiff must allege that an individual acting under

color of state law violated his constitutional rights or a federal law. To the extent Plaintiff

brings claims against the Board as an entity, a local governmental entity cannot be liable

under § 1983 on a respondeat superior theory. Monell v. Dep’t ofSoc. Servs., 436 U.S.

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658, 694 (1978). Plaintiff must show a policy, practice, or custom by the entity which

permitted the alleged constitutional violation to occur. See Christie v. lopa, 176 F.3d 1231,

1234-35 (9th Cir. 1999). Alternatively, Plaintiff can show that a government official

“(1) had final policymaking authority concerning the action alleged to have caused the

particular constitutional or statutory violation at issue and (2) was the policymaker for the

local governing body for the purposes of the particular act.” Cortez v. Cty. of Los Angeles,

294 F.3d 1186, 1189 (9th Cir. 2002) (internal quotations and citation omitted).

Plaintiff alleges no specific facts supporting a violation of constitutional rights or

federal law by Defendants, nor a policy, custom, or practice of the Board that violated his

rights.

Amendment is inapplicable to this civil action, and his other asserted violations include

numerous citations to legal sources with no factual support. Doc. 25 at 6-11. Plaintiff

1.3

generally asserts that his complaint is sufficient, Doc. 37 at 5, but points to no factual

content that allows the court to draw the reasonable inference that Defendants are liable for

the misconduct alleged. Twombly, 550 U.S. at 556.

The Court cannot discern the basis for Plaintiffs other claims.

The Sixth

Plaintiffs response to Defendants’ motion cites additional legal authority, but fails

to shed light on the nature of his claims by identifying specific claims for relief and their

factual support. See Doc. 37. He asserts that he “listed all Defendants and causes of

violations” in pages 7-10 of his complaint (id. at 5), but those pages include only threadbare

assertions that various Defendants failed to provide evidence, interview witnesses,

thoroughly review law and documents, and failed to be impartial, without linking the

allegations to specific causes of action. Doc. 25 at 7-10.

With dozens of legal citations and only minimal factual allegations, Plaintiffs

complaint identifies no cognizable legal theory supported by “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S.

at 678 (citing Twombly, 550 U.S. at 570). The Court cannot write Plaintiffs complaint for

him. Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124, 1131 (9th Cir. 2008) (“The

court may dismiss a complaint for failure to satisfy Rule 8 if it is so confusing that its ‘true

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Case 2:18-cv-01493-DGC Document 40 Filed 05/31/19 Page 6 of 7

substance, if any, is well disguised.”’); see also McHenry v. Renne, 84 F.3d 1172, 1180

(9th Cir. 1996) (complaint “without simplicity, conciseness and clarity as to whom

plaintiffs are suing for what wrongs, fails to perform the essential functions of a

complaint.”).

Leave to Amend.

In the Ninth Circuit, “[a] pro se litigant must be given leave to amend his or her

complaint unless it is absolutely clear that the deficiencies of the complaint could not be

cured by amendment.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th

Cir. 1988) (citing Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)); Waters v. Young,

100 F.3d 1437, 1441 (9th Cir. 1996) (“As a general matter, this court has long sought to

ensure that pro se litigants do not unwittingly fall victim to procedural requirements that

they may, with some assistance from the court, be able to satisfy.”).

Plaintiff has filed one amended complaint as a matter of course, but Defendants do

not argue that permitting another amendment would result in prejudice, undue delay, or be

futile. See Doc. 36 at 5. Plaintiff may still be able to craft a second amended complaint

that alleges sufficient factual support for his claims. If Plaintiff satisfies the Court’s

requirements as set forth above, the Court will grant Plaintiff leave to amend. i

IIL

Conclusion.

In conclusion, by Tuesday, July 16,2019, Plaintiff must (1) show good cause why

the Court should grant an extension to serve all 18 Defendants under Rule 4, and

(2) provide proof that he is in fact a reserve member of the U.S. Armed Forces and has

been deployed during the times averred to the Court.

requirements, the Court will permit additional time to serve, and, if service is completed,

will dismiss Plaintiff s first amended complaint for failure to state a claim and will grant

him leave to amend. If Plaintiff does not make the good cause showing explained above,

the Court will dismiss this action for lack of service. If Plaintiff fails to provide clear

If Plaintiff satisfies these

Defendants make various other arguments, but the Court cannot address them in

the absence of a clear complaint.

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evidence that he is in fact a reserve member of the U.S. Armed Forces and has been

deployed during the times averred to the Court, the Court likely will dismiss this case for

failure to prosecute.

Plaintiff has filed motions to Amend/Correct Caption of Complaint, Amend/Correct

Monetary Damage of Complaint, and Authorize Case Management Order. Docs. 31-33.

These motions will be denied as moot in light of this order.

IT IS ORDERED:

Defendant’s motion to dismiss (Doc. 36) is granted in part and denied in

part. Dismissal for failure to state a claim under Rule 12(b)(6) will be

granted, with leave to amend, if Defendants are properly served.

Plaintiffs pending motions (Docs. 31, 32, 33) are denied as moot.

By July 16, 2019, Plaintiff must (1) show good cause why the Court should

grant an extension to serve all 18 Defendants under Rule 4, and (2) provide

proof that he is in fact a reserve member of the U.S. Armed Forces and has

been deployed during the times averred to the Court.

Dated this 30th day of May, 2019.

David G. Campbell

Senior United States District Judge

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Case 2:18-cv-01493-DGC Document 40 Filed 05/31/19 Page 1 of 7

(

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Rafael Cezar Danam,

Plaintiff,

Arizona Board of Education, as individual

members of the Arizona Board of Education,

No. CV-18-1493-PHX-DGC

ORDER

Defendants.

Pro se plaintiff Rafael Cezar Danam filed this action against the 18 members of the

Arizona Board of Education, asserting various state and federal claims and seeking more

than $2 million in damages. Doc. 25. Defendants have moved to dismiss Plaintiffs first

amended complaint on several grounds. Doc. 36. The motion is fully briefed. Docs. 37,

39. As explained below, Plaintiff must respond to this order by July 16, 2019.

Background.

Neither Plaintiffs first amended complaint nor his response to Defendant’s motion

clearly explain the relevant factual background for his claims. Defendant notes that

Plaintiffs “claims appear to arise out of the Board’s investigation and subsequent

revocation of Plaintiff s teaching license.” Doc. 36 at 2. An exhibit attached to Plaintiffs

original complaint also refers to his termination and the revocation of his substitute teacher

certification. Doc. 1 at 9.

III

AUTHENTICATED

U.S. GOVERNMENT-—I

INFORMATION ^

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Case 2:18-cv-01493-DGC Document 40 Filed 05/31/19 Page 2 of 7

II.