Markham v. Pima, County of
4:16-cv-00134
D. Ariz.Aug 22, 2017Background
- Plaintiff Gerald Markham sued Pima County, former Sheriffs Dupnik and Nanos, current Sheriff Napier (substituted), Pima County Sheriff’s Department (PCSD), and deputies Jansen, Dixon, and Curtin after a DUI arrest and multiple blood-draw attempts.
- Markham alleges Fourth and Fourteenth Amendment claims (excessive force/unlawful imprisonment), individual-capacity claims against Dupnik and Nanos based on policies/practices, a Monell/official-capacity ADA claim against Pima County and Napier, and an official-capacity Monell claim against Napier for injunctive relief.
- The Court previously dismissed several claims, granted leave to amend some claims, and plaintiff filed a First Amended Complaint.
- Defendants moved to dismiss the First Amended Complaint; Pima County separately moved to partially dismiss the ADA Monell claim.
- The Magistrate Judge recommends dismissing most claims (many without leave to amend) but denying dismissal of Markham’s Fourth Amendment excessive-force claim against deputies Dixon and Curtin for allegedly performing five increasingly painful, unsuccessful venipunctures before a hospital draw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Monell / official-capacity claim against Sheriff Napier | Napier responsible for unconstitutional blood-draw policy/orders | Policy is not facially unconstitutional; Napier improperly substituted | Dismissed without leave to amend |
| Individual-capacity claims vs. Dupnik and Nanos (policy/practice) | They implemented deficient DUI procedures permitting improper blood draws | Written DUI manual requires phlebotomists and complies with state law; no unconstitutional policy shown | Dismissed without leave to amend |
| Monell claim against Pima County (based on Dupnik, Nanos, Jansen, Dixon, Curtin) | County maintained unwritten/custom practice of improper venipunctures | No facts showing persistent, widespread custom contrary to written policy | Dismissed without leave to amend |
| Excessive force (blood draws) vs. Jansen, Dixon, Curtin | Deputies used unreasonable force by multiple painful attempts despite medical condition/age | Qualified immunity and reasonableness; disputed who performed draws | Excessive-force claim survives as to Dixon and Curtin (for unsuccessful multiple draws); dismissed as to Jansen; Fourteenth Amendment framing dismissed; qualified immunity denied for Dixon and Curtin |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (pleading standards require more than labels and conclusions)
- Erickson v. Pardus, 551 U.S. 89 (2007) (pro se complaints construed liberally)
- Hansen v. Black, 885 F.2d 642 (9th Cir. 1989) (personal liability for supervisory officials)
- Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal liability requires unconstitutional policy or custom)
- Board of County Comm'rs of Bryan County v. Brown, 520 U.S. 397 (1997) (official policy must itself be unconstitutional to impose municipal liability)
- Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992) (municipal custom requires longstanding, widespread practice)
- Davis v. City of Ellensburg, 869 F.2d 1230 (9th Cir. 1989) (single incident insufficient to establish municipal custom)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity two-step analysis)
- Schmerber v. California, 384 U.S. 757 (1966) (Fourth Amendment standards govern blood draws)