Melendres Appeal 13-16285 #85 - Plaintiffs Response to MC Mot for Reconsideration

8/21/2019 Melendres Appeal 13-16285 #85 - Plaintiffs Response to MC Mot for Reconsideration

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No. 13-16285

No. 13-17238

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.,

Plaintiffs-Appellees

v.

JOSEPH M. ARPAIO, ET AL.,

Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

2:07-cv-02513-GMS

The Honorable G. Murray Snow

United States District Judge

APPELLEES’ RESPONSE TO PETITION OF MARICOPA COUNTY,

ARIZONA FOR PANEL REHEARING AND EN BANC DETERMINATION

Stanley Young

Hyun S. Byun

COVINGTON & BURLING LLP

333 Twin Dolphin Drive, Suite 700

Redwood Shores, CA 94065-1418

Telephone: (650) 632-4700

Facsimile: (650) 632-4800

[email protected]@cov.com

Tammy Albarran

Rebecca A. Jacobs


One Front Street

San Francisco, CA 94111

Telephone: (415) 591-7066

Facsimile: (415) 955-6566

[email protected]@cov.com

(counsel continued on next page)

Attorneys for Plaintiffs-Appellees

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.

Case: 13-16285, 06/10/2015, ID: 9569953, DktEntry: 85, Page 1 of 23


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Dan Pochoda

ACLU FOUNDATION OF ARIZONA

3707 N. 7th St., Ste. 235

Phoenix, AZ 85014

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

[email protected]

Cecillia D. Wang ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

39 Drumm Street

San Francisco, CA 94111

Telephone: (415) 343-0775

Facsimile: (415) 395-0950

[email protected]

Andre Segura

ACLU FOUNDATION

IMMIGRANTS’ RIGHTS PROJECT

125 Broad Street, 17th Floor

New York, NY 10004

Telephone: (212) 549-2676Facsimile: (212) 549-2654

[email protected]

Anne Lai 401 E. Peltason Dr.

Law 4800-P

Irvine, CA 92697-8000

Telephone: (949) 824-9894

Facsimile: (949) [email protected]

Jorge Martin Castillo

MEXICAN AMERICAN LEGAL AND

EDUCATIONAL FUND

634 South Spring Street, 11th Floor

Los Angeles, CA 90014

Telephone: (213) 629-2512

Facsimile: (213) 629-0266

[email protected]

Attorneys for Plaintiffs-Appellees

MANUEL DE JESUS ORTEGA MELENDRES, ET AL.



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TABLE OF CONTENTS

INTRODUCTION ..................................................................................................... 1

STATEMENT OF FACTS ........................................................................................ 2

REASONS THAT THE PETITION SHOULD BE DENIED .................................. 3

I. The Removal of MCSO Justifies the Joinder of the County,

Which Is Liable for the Sheriff’s Constitutional Violations. .......................... 4

II. The County’s Policymaking Has Been at Issue Throughout

the Case, and the County Is Therefore a Real Party in Interest....................... 6

III. The Structure of the Arizona Government Does Not Make

Joinder Improper. ............................................................................................. 7

IV. The Panel’s Decision Does Not Realign the County’s

Government Structure or Otherwise Violate Any

Principles of Federalism. ............................................................................... 11

V. The County Is Bound by the Judgments Against MCSO and the

Sheriff in His Official Capacity. .................................................................... 12

VI. The County’s Presence as a Party in the Case Will Better

Ensure Full Relief to the Plaintiff Class and Is on “Just Terms.” ................. 13

VII. The County Poses No Serious Questions Arising from the

Court’s Order to Join the County. ................................................................. 15

CONCLUSION ........................................................................................................ 15



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TABLE OF AUTHORITIES

Page(s)

CASES

Braillard v. Maricopa Cnty.,232 P.3d 1263 (Ariz. Ct. App. 2010) ........................................................... passim

Cameron v. Gila Cnty.,

No. CV11-80-PHX-JAT, 2011 WL 2115657

(D. Ariz. May 26, 2011) ..................................................................................... 13

Cortez v. Cnty. of Los Angeles,

294 F.3d 1186 (9th Cir. 2002) .............................................................................. 6

Ellman Land Corp. v. Maricopa Cnty.,884 P.2d 217 (Ariz. Ct. App. 1994) .................................................................... 13

Flanders v. Maricopa Cnty.,

54 P.3d 837 (Ariz. Ct. App. 2002) .................................................................. 6, 14

Guillory v. Greenlee Cnty.,

No. CV05-352TUC DCB, 2006 WL 2816600

(D. Ariz. Sept. 28, 2006) ....................................................................................... 6

Herrington v. Cnty. of Sonoma,

12 F.3d 901 (9th Cir. 1993) ................................................................................ 12

Hounshell v. White,

220 Ariz. 1 (App. 2008) .................................................................................... 8, 9

In re Gottheiner ,

703 F.2d 1136 (9th Cir. 1983) ............................................................................ 12

Kentucky v. Graham,

473 U.S. 159 (1985) .................................................................................... 1, 7, 14

Lovejoy v. Arpaio,

No. CV09-1912PHXNVW, 2010 WL 466010

(D. Ariz. Feb. 10, 2010) ........................................................................................ 6

Maier v. Lucent Tech., Inc.,

120 F.3d 730 (7th Cir. 1997) .............................................................................. 10



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McMillian v. Monroe Cnty., Ala.,

520 U.S. 781 (1997) .............................................................................................. 5

Melendres v. Arpaio,

784 F.3d 1254 (9th Cir. 2015) ...................................................................... 2, 3, 9

Monell v. Dep’t of Soc. Servs. of City of New York ,

436 U.S. 658 (1978) .................................................................................... 5, 7, 12

Mora v. Arpaio,

No. CV-09-1719-PHX-DGC, 2011 WL 1562443

(D. Ariz. Apr. 25, 2011) ........................................................................................ 6

Nat’l Fed. of Indep. Bus. v. Sebelius,

132 S. Ct. 2566 (2012) ........................................................................................ 11

Normandeau v. City of Phoenix,

516 F. Supp. 2d 1054 (D. Ariz. 2005) ................................................................ 13

Ortega Melendres v. Arpaio,

598 F. Supp. 2d 1025 (2009) ................................................................................ 2

Pembaur v. City of Cincinnati,

475 U.S. 469 (1986) .............................................................................................. 6

Puente Arizona v. Arpaio,

No. CV-14-01356-PHX-DGC, 2015 WL 1432674 (D. Ariz. Mar.

27, 2015) ..................................................................................................... 6, 8, 14

Puente Arizona v. Arpaio,

No. CV-14-01356-PHX-DGC, 2015 WL 58671 (D. Ariz. Jan. 5,

2015) ..................................................................................................................... 6

Rizzo v. Goode,

423 U.S. 362 (1976) ............................................................................................ 11

Smalley v. Contino, No. CV12-2524-PHX-DGC, 2013 WL 858103 (D. Ariz. Mar. 7,

2013) ..................................................................................................................... 6

Streit v. Cnty. of Los Angeles,

236 F.3d 552 (9th Cir. 2001) ................................................................................ 5



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Tait v. W. Maryland Ry. Co.,

289 U.S. 620 (1933) ............................................................................................ 13

United States v. Maricopa Cnty., Ariz .,

915 F. Supp. 2d 1073 (D. Ariz. 2012) .................................................................. 6

Washington Mut. Inc. v. United States,

636 F.3d 1207 (9th Cir. 2011) ............................................................................ 12

Zuk v. Gonzalez ,

No. 507-CV-732, 2007 WL 2163186 (N.D.N.Y. July 26, 2007) ....................... 10

STATUTES

42 U.S.C. § 1983 .................................................................................................. 5, 14

Ariz. Rev. Stat. Ann. § 11-401 ............................................................................. 8, 13

Ariz. Rev. Stat. Ann. § 11-441 ................................................................................... 5

Ariz. Rev. Stat. Ann. § 11-444 ................................................................................... 5

CONSTITUTIONAL PROVISIONS

Ariz. Const. art. XII, § 1 ............................................................................................ 8

Ariz. Const. art. XII, § 3 ............................................................................................ 8

Ariz. Const. art XII, § 4 ............................................................................................. 5

R ULES

Fed. R. App. P. 35 .............................................................................................. 1, 3, 4

Fed. R. App. P. 40 .............................................................................................. 1, 3, 4

Fed. R. Civ. P. 19 ....................................................................................................... 9

Fed. R. Civ. P. 20 ..................................................................................................... 10

Fed. R. Civ. P. 21 ............................................................................................. 3, 9, 13



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INTRODUCTION

The Petition of Maricopa County, Arizona for Panel Rehearing and En Banc

Determination (“Petition”) fails to identify how the panel’s unanimous decision to

substitute Maricopa County (“County”) for the Maricopa County Sheriff’s Office

(“MCSO”) conflicts with any precedent of this Court or the Supreme Court, or

overlooks any material legal or factual issue.

The finding that MCSO is a nonjural entity justifies the substitution of the

County, in accord with the decision of the Arizona Court of Appeals on which the

panel relied. The substitution also comports with well-settled rules concerning the

liability of counties for constitutional torts committed by their officers.

This action has always been about policies that the Sheriff executed as a

“final policymaker” of the County. See Kentucky v. Graham, 473 U.S. 159, 166

(1985) (“. . . [A]n official-capacity suit is, in all respects other than name, to be

treated as a suit against the entity.”). The County’s addition as a party requires no

“realignment” of its governmental structure and violates no principle of federalism.

The County is bound by the judgments against MCSO and the Sheriff, because

there is substantial identity of interest between the County and the Sheriff in this

case. The Petition fails to meet the standards of Federal Rules of Appellate

Procedure 35 and 40 and should therefore be denied.



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STATEMENT OF FACTS

In December of 2007, Plaintiffs filed this action against Sheriff Joseph M.

Arpaio and the County. Compl., Dkt. No. 1. On September 5, 2008, Plaintiffs

filed a First Amended Complaint against the Sheriff and the County and also added

MCSO as a defendant. Dkt. No. 18. MCSO filed a Motion to Dismiss, contending

that it was a nonjural entity incapable of being sued in its own name. The District

Court refused to dismiss MCSO as a nonjural entity, noting that this issue “[wa]s

very much unsettled.” Ortega Melendres v. Arpaio, 598 F. Supp. 2d 1025, 1039

(2009); Dkt. No. 49.

The County, along with the Sheriff and MCSO, continued to defend the

action until September 21, 2009. At that time, the County and Plaintiffs filed a

stipulation dismissing the County from the action (“Joint Motion to Dismiss”).

Dkt. No. 178. The stipulation provided that the County’s dismissal was “without

prejudice to rejoining [the County] as a Defendant at a later time in this lawsuit if

doing so becomes necessary to obtain complete relief.” Id. at 3. On October 13,

2009, the Joint Motion was granted. Dkt. No. 194. The lawsuit continued, as

described in the panel’s decisions, 695 F.3d 990 (9th Cir. 2012) and 784 F.3d 1254

(9th Cir. 2015).

In 2010, in a case involving a wrongful death alleged to have been caused by

inadequate training of MCSO personnel, the Arizona Court of Appeals held that



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MCSO is a nonjural entity. Braillard v. Maricopa Cnty., 232 P.3d 1263, 1275

(Ariz. Ct. App. 2010). It stated, “Because we have concluded MCSO is a nonjural

entity, such a claim, based on the training issues identified in our discussion of

Arpaio’s liability, can be made properly against the County.” Id.

In 2013, the District Court concluded that the Sheriff and MCSO had

violated the Fourth and Fourteenth Amendments and awarded injunctive relief.

Dkt. Nos. 579, 606, 748. Sheriff Arpaio and MCSO appealed, and this Court

issued its panel decision on April 15, 2015, affirming the liability findings and the

injunctive remedy, with the sole exception of one injunctive provision, which was

remanded for further tailoring.

However, citing the intervening Braillard decision, the unanimous panel

stated, “it is now clear that MCSO has improperly been named as a party in this

action,” and pursuant to Federal Rule of Civil Procedure 21, it ordered that

Maricopa County be substituted for MCSO. Melendres v. Arpaio, 784 F.3d 1254,

1260 (9th Cir. 2015). The County now challenges the substitution, seeking a panel

rehearing or en banc determination.

REASONS THAT THE PETITION SHOULD BE DENIED

The Petition fails to meet the standards of Federal Rules of Appellate

Procedure 35 and 40. En banc rehearing is “not favored and ordinarily will not be

ordered unless (1) en banc consideration is necessary to secure or maintain



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uniformity of the court’s decisions; or (2) the proceeding involves a question of

exceptional importance.” Fed. R. App. P. 35(a). The Petition does not meet this

standard. Petitions for panel rehearing must “state with particularity each point of

law or fact that the petitioner believes the court has overlooked or

misapprehended.” Fed. R. App. P. 40(a)(2). There are no questions of law or fact

that the panel has overlooked or misapprehended.

I.

The Removal of MCSO Justifies the Joinder of the County, Which Is

Liable for the Sheriff’s Constitutional Violations.

The Arizona Court of Appeals has explicitly pointed out that claims against

MCSO, a nonjural entity, are properly asserted against the County instead.

Braillard , 232 P.3d at 1275 (“Because we have concluded MCSO is a nonjural

entity, such a claim, based on the training issues identified in our discussion of

Arpaio’s liability, can be made properly against the County.”). The Petition argues

that the County should not be joined because the County (which the Petition seeks

to define as primarily the County’s Board of Supervisors, see Petition at 3, n.1) is

separate and independent from the Sheriff, his office, and other constitutional

officers. Petition at 7-8. But such separate jural existence is precisely what the

Arizona Court of Appeals rejected in Braillard . Adding the County as a named

party is the logical consequence of Braillard ’s conclusions that MCSO has no jural

existence apart from the County and that an action brought putatively against

MCSO is really an action against the County.



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Further, the County is actually liable for harms caused by the

unconstitutional policies set by the Sheriff acting as the County’s law enforcement

officer. It is well-established that a county or municipality is liable under

42 U.S.C. § 1983 when policies executed “by those whose edicts or acts may fairly

be said to represent official policy” inflict constitutional injury. Monell v. Dep’t of

Soc. Servs. of City of New York , 436 U.S. 658, 659 (1978). In evaluating a

county’s liability for constitutional torts committed by its officers, a court “must

consider the state’s legal characterization of the government entities which are

parties to these actions[;]” however, “federal law provides the rule of decision in

section 1983 actions.” Streit v. Cnty. of Los Angeles, 236 F.3d 552, 560 (9th Cir.

2001); see also McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 786 (1997) (an

official’s “final policymaking authority” for a county is dependent on state law).

On matters of law enforcement, Sheriff Arpaio is the final policymaker for

Maricopa County. 1 The County’s liability for the Sheriff’s unconstitutional

1 The Arizona Constitution provides that the Sheriff’s duties and powers “shall be

prescribed by law.” Ariz. Const. art XII, § 4. Under Ariz. Rev. Stat. § 11-441, theSheriff is empowered to “[a]rrest and take before the nearest magistrate for

examination all persons who attempt to commit or who have committed a publicoffense.” Id. The County funds the “actual and necessary expenses incurred bythe [S]heriff in pursuit of criminals, for transacting all civil or criminal businessand for service of all process and notices.” Ariz. Rev. Stat. Ann. § 11-444(A);

Braillard , 232 P.3d at 1269 n.2. The Sheriff also must account his monthlyexpenses to the County. Ariz. Rev. Stat. Ann. § 11-444(C).



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policymaking in that field is the necessary consequence. See Flanders v. Maricopa

Cnty., 54 P.3d 837, 847 (Ariz. Ct. App. 2002) (concluding in jail conditions case

that the Sheriff is a final policymaker for the County for purposes of 42 U.S.C. §

1983 liability); Puente Arizona v. Arpaio, No. CV-14-01356-PHX-DGC, 2015 WL

58671, at *25 (D. Ariz. Jan. 5, 2015) (“ Flanders compels the conclusion that

Sheriff Arpaio is the final policymaker for [Maricopa] County on law-enforcement

matters.”); Pembaur v. City of Cincinnati, 475 U.S. 469, 484 n.12 (1986)

(decisions over which a sheriff is the official policymaker give rise to county

liability); Cortez v. Cnty. of Los Angeles, 294 F.3d 1186, 1192 (9th Cir. 2002) (a

county is subject to § 1983 liability where its sheriff acted as final policymaker).2

II.

The County’s Policymaking Has Been at Issue Throughout the Case,

and the County Is Therefore a Real Party in Interest.

The Petition argues that because the Plaintiffs’ claims focus primarily on the

practices of the Sheriff and MCSO without “specifically accusing the County”, the

County is not a proper party to the case. Petition at 6. But this is contrary to

2 See also Puente Arizona, 2015 WL 1432674, at *1 (Maricopa County is liable for

the Sheriff’s law-enforcement decisions); Smalley v. Contino, No. CV12-2524-PHX-DGC, 2013 WL 858103, at *5 (D. Ariz. Mar. 7, 2013) (same); United States

v. Maricopa Cnty., Ariz ., 915 F. Supp. 2d 1073, 1084 (D. Ariz. 2012) (same); Mora v. Arpaio, No. CV-09-1719-PHX-DGC, 2011 WL 1562443, at *7 (D. Ariz.Apr. 25, 2011) (same); Lovejoy v. Arpaio, No. CV09-1912PHXNVW, 2010 WL466010, at *13 (D. Ariz. Feb. 10, 2010) (same); Guillory v. Greenlee Cnty., No.CV05-352TUC DCB, 2006 WL 2816600, at *5 (D. Ariz. Sept. 28, 2006)(Greenlee County is liable for its sheriff’s law-enforcement decisions).



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controlling authorities, supra, which hold that the County is liable for the practices

of the Sheriff and MCSO, and that the County is a real party in interest.

Official capacity suits are a “way of pleading an action against an entity of

which an officer is an agent.” Kentucky, 473 U.S. at 165 (citing Monell , 436 U.S.

at 690 n.55). The Supreme Court has made plain that, “[a]s long as the

government entity receives notice and an opportunity to respond, an official

capacity suit is, in all respects other than name, to be treated as a suit against the

entity.” Id. at 166. As such, “the real party in interest is the entity.” Id.

The County has had notice and opportunity to respond. It was notified of

this suit by service with a summons, Dkt. No. 8, and it was named in the Plaintiffs’

initial and first amended complaints, Dkt. Nos. 1, 26. The parties’ Joint Motion to

Dismiss shows that the County not only had opportunity to respond, but took

advantage of that opportunity. Dkt No. 178.

III.

The Structure of the Arizona Government Does Not Make Joinder

Improper.

The Petition contends that joinder is improper because the County is not

vertically integrated, so that joinder of the County makes the Board of Supervisors

a defendant in an action where it has no control over the conduct to be enjoined

(i.e., the Sheriff’s). Petition at 10.

The County’s argument rests on the flawed premise that the Board of

Supervisors’ alleged lack of control over the Sheriff is a defense to the County’s



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liability. See Petition at 7-8 (citing Hounshell v. White, 220 Ariz. 1, 5-6 (App.

2008)). This is an argument that the County has made multiple times in an attempt

to escape liability, and it has lost every time because that alleged fact is irrelevant

under the controlling law. See, e.g., Puente Arizona v. Arpaio, No. CV-14-01356-

PHX-DGC, 2015 WL 1432674, at *2 (D. Ariz. Mar. 27, 2015) (“Contrary to the

County’s argument, a county’s lack of control over a sheriff is not dispositive of its

liability for his law-enforcement decisions under § 1983.”).

The Petition rests on a definition of “the County” that includes only the

Board of Supervisors and County Manager and those who serve under them, while

explicitly excluding other elected officials, such as the Sheriff, and those who

serve under such officials. See Petition at 3, n.1. But Arizona law defines the

county as more than just the Board of Supervisors, the County Manager, and those

who serve under them. The Arizona Constitution provides that each county “shall

be a body politic and corporate.” Ariz. Const. art. XII, § 1. The Board of

Supervisors and the Sheriff are each among the nine enumerated officers of the

County. Ariz. Const. art. XII, § 3; Ariz. Rev. Stat. Ann. § 11-401. The entity that

is liable is the County as it is defined under these Arizona laws. For purposes of

enforcement of Plaintiffs’ rights, the County includes the Sheriff and MCSO as

much as it includes the Board of Supervisors and the rest of the County’s



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enumerated officers and their offices. The County is a proper party in a lawsuit

over the unconstitutional actions of its Sheriff.3

The Petition also claims that the County is not a “necessary” party under

Federal Rule of Civil Procedure 19. Id. at 11. This argument fails because it

assumes that the County cannot be properly joined other than under Federal Rule

of Civil Procedure 19 (“Required Joinder of Parties”). Petition at 10. But the

panel did not rely on Rule 19 in its decision, Melendres, 784 F.3d at 1260, and it

had no need to do so. On the contrary, the panel correctly cited Rule 21, which

states, “Misjoinder of parties is not a ground for dismissing an action. On motion

or on its own, the court may at any time, on just terms, add or drop a party . . . .”

Fed. R. Civ. P. 21. The panel’s decision accomplished what the District Court also

could have ordered at any point in the litigation, which is to name the proper party

in place of MCSO. The Federal Rules of Civil Procedure also allow for permissive

joinder under Rule 20. See Fed. R. Civ. P. 20 (defendants may be joined if “(A)

3 The County’s reliance on Hounshell is misplaced. Hounshell , which holds that a

county Board of Supervisors may not discipline employees who report to a sheriff,simply is not relevant to the present case. In Hounshell , the court was concernedonly with the allocation of powers within the government of a county. The holding

of the case implies nothing about the rights of an external party who is suing thecounty. As against such an external party, the county is a single unitary entity,which is responsible for the acts of all of its components. See Hounshell , 220 Ariz.at 6 (“Finally, we recognize that a complaining party can argue that a county mayincur liability in the event that a county officer declines to discipline an employeeengaged in misconduct.”).



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any right to relief is asserted against them jointly, severally, or in the alternative

with respect to or arising out of the same transaction, occurrence, or series of

transactions or occurrences; and (B) any question of law or fact common to all

defendants will arise in the action.”). The claims against the County and the

Sheriff arise out of the same series of occurrences, and there are common questions

of law and fact. Substituting the County for MCSO is proper under Rules 20 and

21. 4

The Petition suggests that the parties’ Joint Motion to Dismiss should

govern the circumstances under which the County can be joined in this lawsuit, see

Petition at 11, but this Court is not bound by the parties’ stipulation.5 The panel’s

decision was proper.

4 Substitutions of real parties in interest are not unusual. See, e.g., Zuk v. Gonzalez ,

No. 507-CV-732 FJS/DEP, 2007 WL 2163186, at *2 (N.D.N.Y. July 26, 2007)(“Since the Court has dismissed all of the claims against all of the individualDefendants, no Defendant remains. Nonetheless, to the extent that Plaintiff hasnamed the individual Defendants in their official capacities, he has in essencenamed Onondaga County-his actual employer-as a Defendant . . . in the interest of

judicial economy, the Court will sua sponte substitute Onondaga County as thesole Defendant.”); Maier v. Lucent Tech., Inc., 120 F.3d 730, 733, n.1 (7th Cir.1997) (granting motion to substitute successor entity Lucent Technologies, Inc. forAT&T where organizational unit of AT&T became part of Lucent and therefore

was “the real party in interest” in the appeal).5 Indeed, the parties themselves are not bound by that stipulation, since it expressly

provided for the County to be joined as a defendant in the future if necessary.Moreover, when the parties filed their Joint Motion to Dismiss in September 2009,Dkt. No. 178, the Arizona Court of Appeals had not yet concluded that MCSO wasa nonjural entity. See Braillard , 232 P.3d 1263. So while it was true at the time

(continued…)



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IV. The Panel’s Decision Does Not Realign the County’s Government

Structure or Otherwise Violate Any Principles of Federalism.

Naming the County as a defendant does not compel a “realignment” of the

County’s government structure or otherwise violate any “principles of federalism.”

See Petition at 12-14. As explained above, as an officer with final policymaking

authority in the area of law enforcement for the County, the Sheriff, in effect, is the

County when he sets such policies and engages in law enforcement practices. The

County, even prior to being named, has therefore been subject to the Court’s

injunctive orders. Its formal addition as a named party causes no “realignment” of

any sort. Rizzo v. Goode, 423 U.S. 362, 378-379 (1976), which states that

plaintiffs seeking to enjoin governmental agencies “must contend with the well-

established rule that the Government has traditionally been granted the widest

latitude in the dispatch of its own internal affairs,” and Nat’l Fed. of Indep. Bus. v.

Sebelius, 132 S. Ct. 2566 (2012), which the County cites to argue that the panel’s

decision erodes state sovereignty’s check on federal power, Petition at 14-15, are

both inapposite in light of the uncontested principle that the County can be held

liable under federal law for the constitutional torts of their officers whose acts

(… footnote continued from previous page)

that the County was “not a necessary party at th[at] juncture,” circumstances havechanged.



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“may fairly be said to represent official policy.” Monell , 436 U.S. at 694. Neither

of those cases allows the County, through its officer the Sheriff, to violate the

Federal Constitution, and neither bars the formal addition of the County as a party

to facilitate a remedy for such violation.

V. The County Is Bound by the Judgments Against MCSO and the Sheriff

in His Official Capacity.

In its effort to be dismissed, the County warns that, if it remains as a

defendant in the case, it will seek to relitigate prior judgments. However, the

County is bound by the earlier decisions of the District Court and of this Court.

Under the law of the case doctrine, “the decision of an appellate court on a legal

issue must be followed in all subsequent proceedings in the same

case.” Herrington v. Cnty. of Sonoma, 12 F.3d 901, 904 (9th Cir. 1993) (citation

omitted). It is also basic civil procedure that “[c]ollateral estoppel applies not only

against actual parties to prior litigation, but also against a party that is in privity to

a party in previous litigation.” Washington Mut. Inc. v. United States, 636 F.3d

1207, 1216 (9th Cir. 2011). “Privity exists when there is ‘substantial identity’

between parties, that is, when there is sufficient commonality of interest.” In re

Gottheiner , 703 F.2d 1136, 1140 (9th Cir. 1983).

Identity of interest can be established in a number of ways, but it is

determinative that “[a]n action against a government officer in her official capacity

is ordinarily equivalent to an action against the government entity itself.”



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Normandeau v. City of Phoenix, 516 F. Supp. 2d 1054, 1070 (D. Ariz. 2005)

(judgment for Motor Vehicle Division served to bind plaintiff in a later suit against

Director of Motor Vehicle Division in her official capacity); see also Tait v. W.

Maryland Ry. Co., 289 U.S. 620, 626 (1933) (judgment against the Commissioner

of Internal Revenue in his official capacity bound the United States in a later suit).

Here, there is identity of interest for the same reason.6 The County may not

relitigate any issues of law or fact that have already been actually adjudicated

against the Sheriff.

VI.

The County’s Presence as a Party in the Case Will Better Ensure Full

Relief to the Plaintiff Class and Is on “Just Terms.”

The panel’s substitution of the County is on “just terms” pursuant to Federal

Rule of Civil Procedure 21, because it will help to ensure that the victims of

Sheriff Arpaio and the County obtain a full remedy for the violations of their

constitutional rights. See Cameron v. Gila Cnty., No. CV11-80-PHX-JAT, 2011

WL 2115657, at *7 (D. Ariz. May 26, 2011) (“. . . [T]he Payson Police Department

is a nonjural entity and must be dismissed from this suit. The dismissal of the

6 Under Arizona law too, serving or suing a county officer is the same as suing the

County with respect those matters for which the officer is the county’s ultimatedecision-maker. See Ellman Land Corp. v. Maricopa Cnty., 884 P.2d 217, 220(Ariz. Ct. App. 1994) (county assessor (who, like the Sheriff is also an enumeratedcounty officer under Ariz. Rev. Stat. § 11-401) had sufficient identity of interestwith the county that service of process on the assessor satisfied the requirement ofservice on the county).



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Police Department will not deprive Plaintiff of any remedies because he has sued

the Town of Payson, the proper political subdivision.”). The full remedy includes

monetary compensation due to contempt of the District Court’s preliminary

injunction, which the District Court is currently considering. Dkt. No. 880.

The County’s claim that its substitution was “wholly unexpected” is both

untrue and irrelevant. Petition at 5. When the County withdrew, it agreed that it

could be rejoined at a later time. Dkt. No. 178 at 3. The County’s liability for §

1983 claims brought against the Sheriff in his official capacity has been clearly

established. See, e.g., Puente Arizona, 2015 WL 1432674, at *1. Moreover, the

County was on notice that a § 1983 judgment “imposes liability upon the public

entity that the official represents, whether or not that entity is joined as a party,

provided the public entity received notice and an opportunity to respond.”

Flanders, 54 P.3d at 847 (emphasis in original); see also Kentucky, 473 U.S. at

166. The County did in fact receive notice of the action. See Summons, Dkt. No.

8. Further, the County has been paying the Defendants’ legal bills, Plaintiffs’ fee

awards, and the costs of a Monitor. Under existing law, the County had every

reason to know that this lawsuit concerned it and that its formal party status might

someday be restored.



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VII. The County Poses No Serious Questions Arising from the Court’s Order

to Join the County.

The answers to all of the County’s “questions” (Petition at 15-17) spring

simply out of the principles already set forth above. Due to its privity with the

Sheriff, the County is bound by prior decisions in this case, consistent with due

process, with no right of retrial and no right to seek further modification or further

appeal, beyond whatever rights the Sheriff himself has, since the County has been

aware of the proceedings and its interests have been fully represented all along by

the Sheriff and the MCSO. The County’s pending appeal, Case No. 13-16285,

should be dismissed.

CONCLUSION

For the foregoing reasons, the Court should deny the County’s request for

rehearing or rehearing en banc.

Dated: June 10, 2015 Respectfully submitted,


/s/ Stanley Young

STANLEY YOUNG

Attorneys for Plaintiffs



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CERTIFICATE OF COMPLIANCE

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached answer is in

compliance with Fed. R. App. P. 32(c) and does not exceed 15 pages.

Date: June 10, 2015 /s/ Stanley Young

STANLEY YOUNG



23/23

CERTIFICATE OF SERVICE

I hereby certify that on June 10, 2015, I electronically filed the foregoing

with the Clerk of the Court for the United States Court of Appeals for the Ninth

Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served by

the appellate CM/ECF system.

Date: June 10, 2015 /s/ Stanley Young

STANLEY YOUNG


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Melendres Appeal 13-16285 #85 - Plaintiffs Response to MC Mot for Reconsideration

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