Hardy v. City of Nome et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CLARICE LEOTA HARDY, )
)
Plaintiff, )
)
vs. )
)
CITY OF NOME, et al., )
) No. 2:20-cv-0001-HRH
Defendants. )
_______________________________________)
O R D E R
Motion for Leave to File Third-Party Complaint
Defendant John Papasodora moves for leave to file a third-party complaint.1 This
motion is opposed by plaintiff Clarice Leota Hardy.2 Oral argument was not requested and
is not deemed necessary.
Background
Plaintiff alleges that she “was employed by the City of Nome, NPD, [Nome Police
Department] from 2015 to 2018.”3 Papasodora is alleged to have been, at all relevant times,
the “Chief of the NPD. . . .”4
1Docket No. 46.
2Docket No. 47.
3Complaint [etc.] at 4, ¶ 9, Docket No. 1.
4Id. at 5, ¶ 11.
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Plaintiff alleges that “in mid-March 2017, [she] was sexually assaulted in her
apartment by Donald Johnson[.]”5 Plaintiff alleges that while she “had no recollection of the
sexual assault[,] friends told her they had seen a video of the assault posted on Snapchat[,]”6
which had allegedly been taken by a friend of Johnson’s girlfriend.7
Plaintiff alleges that “[s]hortly after the assault, [she] reported the incident to her
coworker at the NPD, then-Lieutenant Nick Harvey.”8 Plaintiff alleges that “Harvey assured
[her] that he would begin an investigation right away.”9 Plaintiff alleges that
“[a]pproximately one month after she first reported the assault to Lt. Harvey, [she] asked him
about the status of the case” and he told her “that he was working on the investigation.”10
Plaintiff alleges that she “asked Lt. Harvey about the status of the investigation” again in July
2017.11 Plaintiff alleges that Harvey “assured [her] that he was working on [her] case[.]”12
Plaintiff alleges that “[o]n or about January 23, 2018, [she] again asked Lt. Harvey about the
5Id. at 12, ¶ 41.
6Id. at 12, ¶ 43.
7Id. at 12-13, ¶ 44.
8Id. at 13, ¶ 45.
9Id. at 13, ¶ 46.
10Id. at 13, ¶¶ 48-49.
11Id. at 14, ¶ 50.
12Id. at 14, ¶ 51.
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status of her complaint.”13 Plaintiff alleges that she “reminded Lt. Harvey that she had
identified witnesses who had seen the video” and that Harvey’s response was “that he would
let [her] know if he needed additional information from her.”14 Plaintiff alleges that because
she was “aware that some investigations required more time than others,” she “continued to
trust that Lt. Harvey was properly investigating her complaint.”15
Plaintiff alleges that in mid-March 2018, after she received a dispatch call from
Johnson, she was upset and crying at her desk and “Joseph Dickerson, a NPD sergeant, . . .
asked her what was wrong.”16 Plaintiff alleges that she told “Dickerson about the sexual
assault and Mr. Johnson’s call, about having reported the assault to Lt. Harvey, and that she
had been waiting for a year for something to happen and nothing had yet been done.”17
Plaintiff alleges that “Sgt. Dickerson immediately summoned Chief Papasodora” and that she
“then recounted to Chief Papasodora all that she had told Sgt. Dickerson and of the times she
had been assured by Lt. Harvey that he was working on her complaint.”18 Plaintiff alleges
that “Chief Papasodora searched NPD’s electronic database but could not find a record of
13Id. at 15, ¶ 54.
14Id. at 15, ¶ 56.
15Id. at 15, ¶ 56.
16Id. at 15-16, ¶¶ 57-58.
17Id. at 16, ¶ 58.
18Id. at 16, ¶ 59.
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[her] complaint. Chief Papasodora told [plaintiff] that he would speak to Lt. Harvey and
have him apprise him of the status of the investigation.”19 Plaintiff alleges that “Chief
Papasodora told [her] that she would need to submit another written report about the sexual
assault” and that she did so on March 27, 2018.20 Plaintiff alleges that “Chief Papasodora
said that he would forward her complaint to the [Alaska State Troopers (‘AST’)] immediately
to request that an investigation be initiated right away.”21 Plaintiff alleges that “Chief
Papasodora also told [her] that he was going to ask AST to investigate why Lt. Harvey took
no action in response to her complaint.”22 Plaintiff alleges that she never heard anything
from Chief Papasodora as to his investigation into Lt. Harvey’s failure to investigate her
report of a sexual assault and that when she contacted AST in May 2018, she “was told that
AST had no record of a complaint from her.”23 Plaintiff alleges that when she asked
Papasodora about this, he said “he ‘had been meaning to get to it’ but that he had not yet
taken any action on [her] complaint.”24
19Id. at 16, ¶ 60.
20Id. at 16-17, ¶¶ 61-62.
21Id. at 17, ¶ 62.
22Id. at 17, ¶ 63.
23Id. at 17, ¶¶ 63-64.
24Id. at 17-18, ¶ 65.
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Plaintiff alleges that on May 24, 2018, Harvey “arrived at the NPD station” after
“attending a meeting at which several Alaska Native women voiced their concerns about the
NPD’s failure to protect them from sexual assaults.”25 Plaintiff alleges that Harvey made
some comments about the meeting and that based on his comments, she “felt intimidated and
scared to know that Lt. Harvey harbored such animus against women who, like her, sought
protection and accountability from the police department.”26 Plaintiff alleges that she “felt
she could not work under the current circumstances and asked Chief Papasodora for
temporary administrative leave while Lt. Harvey’s failure to investigate her complaint was
being investigated.”27 Plaintiff alleges that her request for leave was granted and that the
leave “began on May 28, 2018.”28
Plaintiff alleges that she began “seeing a counselor and a psychiatrist for the
exacerbated trauma she suffered as a result of having her complaint not taken seriously by
her superiors, including persistent nightmares, flashbacks, and panic attacks.”29 Plaintiff
alleges that she “was diagnosed with severe post-traumatic stress disorder (PTSD).”30
25Id. at 19, ¶ 69.
26Id. at 19, ¶¶ 69-70.
27Id. at 19, ¶ 71.
28Id. at 19, ¶ 71.
29Id. at 20, ¶ 73.
30Id. at 20, ¶ 73.
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Plaintiff alleges that she was eventually granted leave under the Family Medical Leave Act
and the Alaska Family Leave Act but that as of October 6, 2018, she had exhausted all of this
leave.31 Plaintiff alleges that the City of Nome thus terminated her employment on October
7, 2018.32
Plaintiff commenced this action on February 20, 2020. Plaintiff’s complaint contains
six counts. In Count I, plaintiff asserts a § 1983 equal protection claim. In Count II, plaintiff
asserts a state law equal protection claim. In Count III, plaintiff asserts a state law
discrimination claim pursuant to AS 18.80.255. In Count IV, plaintiff asserts a state law
hostile work environment claim and a state law constructive discharge claim. In Count V,
plaintiff asserts a breach of the implied covenant of good faith and fair dealing claim. In
Count VI, plaintiff asserts an intentional infliction of emotional distress claim. All of these
claims are asserted against Papasodora, who is being sued in his individual capacity.33
Pursuant to Rule 14, Federal Rules of Civil Procedure, Papasodora now moves for
leave to file a third-party complaint against Donald Johnson for purposes of allocating fault.
Discussion
Rule 14(a)(1) provides that “[a] defending party may, as third-party plaintiff, serve a
summons and complaint on a nonparty who is or may be liable to it for all or part of the claim
31Id. at 20, ¶ 75; 21, ¶ 77.
32Id. at 21, ¶ 77.
33Id. at 5, ¶ 11.
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against it.” “Thus, a third-party claim may be asserted only when the third party’s liability
is in some way dependent on the outcome of the main claim and is secondary or derivative
thereto.” Stewart v. Amer. Int’l Oil & Gas Co., 845 F.2d 196, 199 (9th Cir. 1988). The
third-party claim “cannot simply be an independent or related claim but must be based upon
plaintiff’s claim against defendant. The crucial characteristic of a Rule 14 claim is that
defendant is attempting to transfer to the third-party defendant the liability asserted against
him by the original plaintiff.” Id. at 200 (citation omitted).
Papasodora argues that it would be proper to bring in Johnson as a third-party
defendant as Johnson is someone to whom fault could be allocated because the alleged
assault by Johnson is a predicate for plaintiff’s damages. Courts in this district have held that
Rule 14 is “the proper mechanism for bringing in additional defendants” for the purpose of
allocating fault. DSV Air & Sea GmbH v. Bragg Investment Co., Case No. 3:06-cv-145
TMB, Case No. 3:06-cv-274 TMB (Consolidated), 2008 WL 11429565, at *4 (D. Alaska Jan.
22, 2008) (citing Robinson v. U-Haul Co., 785 F. Supp. 1378, 1379 (D. Alaska 1992)).
Papasodora argues that “[i]f [p]laintiff presents cognizable evidence of her mid-March 2017
alleged rape by Donald Johnson and her subsequent trauma from having to take his call as
a dispatcher in mid-March 2018, Defendant Papasodora must be able to apportion fault
pursuant to Alaska Statute 09.17.080. . . .”34 “Alaska Statute 09.17.080 provides for the
34Defendant Papasodora’s . . . Motion for Leave to File a Third-Party Complaint [etc.]
at 3, Docket No. 46.
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apportionment of damages in actions involving the fault of more than one person[.]” L.D.G.,
Inc. v. Brown, 211 P.3d 1110, 1122 (Alaska 2009).
Papasodora has not shown that the requirements of Rule 14 have been met. The
alleged assault by Johnson is not the predicate for the damages plaintiff seeks against
Papasodora and the other defendants. Rather, the damages plaintiff seeks are based on
defendants’ failure to investigate her report of the assault, and not the assault itself. Any
claim against Johnson would not be “dependent on the outcome of” plaintiff’s claims against
Papasodora and the other defendants. Stewart, 845 F.2d at 199.
Hay v. Somerset Area School District, Case No. 3:16-cv-229, 2017 WL 5029057
(W.D. Pa. Oct. 31, 2017), is illustrative. There, Hay alleged that the school district had
“acted with deliberate indifference towards inappropriate sexual conduct by Stephen Shaffer,
a former teacher, causing [her] to be sexually abused while she was a student.” Id. at *1.
The court had given the school district leave to file a third-party complaint against Shaffer,
and Shaffer moved to dismiss that complaint. Id. The school district had asserted a claim
for contribution against Shaffer in the third-party complaint and the question before the court
was whether the school district had “sufficiently pled facts plausibly giving rise to
contribution under Pennsylvania law[.]” Id. at *5. “‘Contribution in Pennsylvania is
governed by the Pennsylvania Uniform Contribution Among Tortfeasors Act” (the “Act”).’”
Id. (quoting Smerdon v. GEICO Cas. Co., No. 4:16-CV-02122, 2017 WL 2506421, at *4
(M.D. Pa. 2017)). “Under the Act, a claim for contribution is only proper if it arises between
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joint tortfeasors.” Id. “The Act defines ‘joint tortfeasors’ as ‘two or more persons jointly or
severally liable in tort for the same injury to persons or property, whether or not judgment
has been recovered against all or some of them.’” Id. (quoting 42 Pa. Stat. and Cons. Stat.
Ann. § 8322) (emphasis omitted). The court found that the school district had “fail[ed] to
state a claim for contribution under Pennsylvania law because it has not alleged facts
plausibly supporting its contention that Shaffer and SASD were joint tortfeasors.” Id. Hay’s
“claims concern (1) SASD’s alleged deliberate indifference to [her] constitutional right of
bodily integrity (the § 1983 claim) and (2) SASD’s subjecting [her] to a sexually hostile
education environment (the Title IX claim). Plaintiff seeks redress for SASD’s policies,
procedures, and protocols—not for Shaffer’s misconduct.” Id. The court further explained
that Hay’s “injury is not ‘single’ or ‘indivisible;’ the injuries inflicted by Shaffer—sexual
assault and sexual harassment—are separate and distinct from the injuries allegedly inflicted
by” the school district. Id. at *6.
The same is true here. The injury inflicted by Johnson, the sexual assault itself, is
separate and distinct from the injury allegedly inflicted by Papasodora, the failure to
investigate.
Papasodora’s argument that Hay has no relevance fails. Papasodora argues that Hay
is irrelevant because it involved Pennsylvania’s Uniform Contribution Act, not AS
09.17.080, which governs allocation of fault in Alaska. But, AS 09.17.080 has no
application here. “To apportion fault to a party under AS 09.17.080, that party’s conduct
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must be a legal cause of the plaintiff’s harm. Thus, legal causation is a prerequisite for
allocation of fault to [Johnson].” Ennen v. Integon Indem. Corp., 268 P.3d 277, 289 (Alaska
2012). “[N]egligent conduct may properly be found to be a legal cause of a plaintiff’s injury
if the negligent act was more likely than not a substantial factor in bringing about (the)
injury.” State, Dep’t of Corrections v. Cowles, 151 P.3d 353, 365 (Alaska 2006) (citation
omitted). “The substantial factor test is satisfied by showing both that the [injury] would not
have happened but for the defendant’s negligence and that the negligent act was so important
in bringing about the injury that reasonable men would regard it as a cause and attach
responsibility to it.’” Id. (citations omitted). Johnson’s conduct could not be the legal cause
of the harm that is alleged in this case because his actions did not contribute to the harm
caused by Papasodora’s inaction after plaintiff reported the assault.
This case is similar to Carreira v. Duvall, Case No. 3:12–cv–00138–SLG, 2013 WL
1683690 (D. Alaska April 16, 2013). There, Ms. Carreira had surgery performed by Dr.
Cranfield and the Carreiras “allege[d] that Dr. Cranfield performed the surgery in a reckless
and negligent manner that fell below the applicable standard of care in many respects.” Id.
at *1 (citation omitted). “The Carreiras contacted the Law Office of Azar and Schlehofer,
P.C. for legal advice regarding the surgery” and they “assert[ed] that the case was assigned
to Ms. Duvall who worked under the supervision of Mr. Azar.” Id. After the Carreiras’
federal lawsuit was dismissed, in large part due to a failure to exhaust administrative
remedies and a statute of limitations problem, “[t]he Carreiras filed . . . suit against Ms.
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Duvall and Mr. Azar. . . .” Id. “Ms. Duvall filed an Answer as well as a Third–Party
Complaint seeking to apportion fault to Dr. Cranfield. . . .” Id. Dr. Cranfield moved to
dismiss the third-party complaint, and the court granted his motion. Id. at *2. The court
explained that
[t]o apportion fault to a party under AS 09.17.080, that party’s
conduct must be a legal cause of the plaintiff’s harm. In this
action, the Carreiras seek damages based on the alleged harms
they incurred when Mr. Azar and Ms. Duvall failed to timely
file a lawsuit and failed to properly investigate their potential
claims. The specific harm that the Carreiras incurred that
underlies their lawsuit against Ms. Duvall and Mr. Azar is their
inability to recover any damages from Dr. Cranfield. Had the
attorneys pursued the medical malpractice claim in a timely
manner, then the Carreiras would not have suffered that
particular harm, as they could have been made whole as a result
of that medical malpractice claim. The medical care that Dr.
Cranfield provided is not a legal cause of this specific harm.
Id. (citation omitted).
Similarly here, the sexual assault by Johnson was not the legal cause of the harm
plaintiff suffered as result of Papasodora’s failure to investigate her report of sexual assault.
Had plaintiff’s report been properly investigated, she would not have suffered the harm
alleged in this action. Quite simply, Johnson did not “contribute[] in some manner” to
Papasodora’s failure to investigate. Id. at *2.
Papasodora’s argument to the contrary is unavailing. Papasodora argues that Johnson
did contribute to the harm plaintiff is claiming in this case because she has alleged that her
trauma was “exacerbated . . . as a result of having her complaint not taken seriously by her
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superiors[.]”35 This allegation implies that plaintiff’s trauma was initially a result of
Johnson’s conduct. Papasodora argues that this means he should be able to review plaintiff’s
treatment records and depose her providers to determine all the causes of her trauma, and he
seems to suggest that he could only do this if Johnson were brought into this case as a third-
party defendant. Papasodora contends that it is likely that some of plaintiff’s trauma was
caused by the alleged sexual assault itself and thus the assault itself must be evaluated by a
trier-of-fact under AS 09.17.080.
But Johnson’s liability is in no “way dependent on the outcome of the main” claims
in this case. Stewart, 845 F.2d at 199. Johnson could be liable to plaintiff even if
Papasodora did not fail to investigate the assault. Likewise, Papasodora could be liable for
failure to investigate even if Johnson did not actually assault plaintiff.
Papasodora’s argument is largely based on the fact that plaintiff has alleged that her
trauma was exacerbated by the failure to investigation. He contends that he should be able
to delve into the reason why she was traumatized to begin with. While he may be correct on
that point, Johnson does not have to be a defendant in order for Papasodora to discover
plaintiff’s medical records or depose her providers. Plaintiff is alleging that her emotional
distress claim was exacerbated by the failure to investigate her report of a sexual assault.
Such an injury is separate and distinct from the trauma that she experienced as a result of the
assault itself.
35Complaint [etc.] at 20, ¶ 73, Docket No. 1 (emphasis added).
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But even if the requirements of Rule 14 and AS 09.17.080 were met, the court would
still deny Papasodora’s motion. “The decision whether to implead a third-party defendant
is addressed to the sound discretion of the trial court.” Southwest Administrators, Inc. v.
Rozay’s Transfer, 791 F.2d 769, 777 (9th Cir. 1986). “It is not an abuse of discretion to deny
an application for impleader where it will disadvantage the existing action.” Id. An
“impleader [may] ‘disadvantage the existing action’ by, among other things, complicating
and lengthening the trial, or introducing extraneous questions.” Helferich Patent Licensing,
LLC v. Legacy Partners, LLC, 917 F. Supp. 2d 985, 988 (D. Ariz. 2013) (quoting Southwest
Administrators, 791 F.2d at 777). The court should also consider whether the impleader will
cause “prejudice to the original plaintiff[.]” Irwin v. Mascott, 94 F. Supp. 2d 1052, 1056
(N.D. Cal. 2000) (citation omitted).
A third-party complaint against Johnson would cause confusion, introduce extraneous
questions, and lengthen the proceedings. In order for Johnson to be held liable, there would
have to be a showing that he committed the sexual assault that plaintiff reported. But, as the
case now stands, there would be no such requirement because plaintiff’s claims do not
require her to prove that she was actually sexually assaulted, only that she reported an assault
that defendants failed to investigate. In order to prevail on her claims, which include a §
1983 claim and state law tort claims, plaintiff will have to prove that defendants’ policies and
procedures for investigating sexually assaults were flawed and that defendants failed to
adequately respond to her report. But, she will not have to prove that she was actually
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assaulted. Adding Johnson as a third-party defendant would change the focus of this case
from whether plaintiff’s civil rights were violated after she reported a sexual assault to the
question of whether the assault occurred, which is an extraneous question. If the issue of
Johnson’s liability for sexual assault were added to this case, it is also possible that plaintiff
would be prejudiced as she might never be able to prove that Johnson actually assaulted her
because evidence may have been lost due to defendants’ alleged failure to investigate.
Conclusion
Papasodora’s motion for leave to file a third-party complaint36 is denied.
DATED at Anchorage, Alaska, this 10th day of November, 2020.
/s/ H. Russel Holland
United States District Judge
36Docket No. 46.
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