NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANGEL GOFF, FKA Angel Kraft, No. 18-17216

Plaintiff-Appellee, D.C. No. 2:17-cv-01623-JJT-DMF v.

JUAN IGNACIO RAMIREZ, Jr., MEMORANDUM*

Defendant-Appellant,

and

STATE OF ARIZONA; CARSON

MCWILLIAMS; BERRY LARSON;

CHARLES L. RYAN,

Defendants.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Argued and Submitted December 4, 2019 San Francisco, California

Before: CALLAHAN and BADE, Circuit Judges, and BOUGH,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. Angel Goff, a transgender woman in the custody of the Arizona Department

of Corrections (“ADOC”), filed suit in the district court against corrections officer

Juan Ignacio Ramirez, Jr. and others asserting civil rights claims under 42 U.S.C.

§ 1983 and state tort claims. Goff’s allegations are based on Ramirez’s conduct

between the latter part of 2014 and mid-2016. Ramirez appeals the district court’s

denial of his motion to dismiss. Ramirez argues that he has statutory immunity

from Goff’s tort claims under Ariz. Rev. Stat. § 31-201.01(F), and that he has

qualified immunity from Goff’s § 1983 claims.

We have jurisdiction under 28 U.S.C. § 1291 and the collateral review

doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 524-25, 530 (1985); Ashcroft v.

Iqbal, 556 U.S. 662, 672 (2009) (citing Behrens v. Pelletier, 516 U.S. 299, 307

(1996)). We review de novo, Hernandez v. City of San Jose, 897 F.3d 1125, 1132

(9th Cir. 2018), and affirm.

I.

The district court properly denied Ramirez’s motion to dismiss the tort

claims against him individually. We are not persuaded by Ramirez’s argument that

he is entitled to statutory immunity under Arizona law. Ramirez argues that Goff’s

state tort claims against him are barred by Ariz. Rev. Stat. § 31-201.01(F), which

provides that “[a]ny and all causes of action that may arise out of tort caused by the

director, prison officers or employees of the department, within the scope of their

2 legal duty, shall run only against the state.” Although, as Ramirez argues, the

phrase “any and all” is expansive, see In re Estate of Lamparella, 109 P.3d 959,

964 (Ariz. Ct. App. 2005), it is limited by the phrase “within the scope of their

legal duty,” Ariz. Rev. Stat. § 31-201.01(F). The statute “does not limit [a]

plaintiff’s right to sue individual employees for actions taken outside the scope of

their legal duty.” Howland v. State, 818 P.2d 1169, 1173 (Ariz. Ct. App. 1991).

Ramirez’s alleged conduct, “grabbing Ms. Goff’s breasts and other body

parts during ‘pat downs’ and forcing himself against her for his own sexual

pleasure” and “forcing Ms. Goff to perform oral sex on him” was “outside the

scope of [his] legal duty” as a corrections officer. See id.

Ramirez cites Arizona Department of Corrections Order (“DO” or

“Department Order”) 708, which governs searches, and argues that because “part

of the tortious conduct . . . occurred during ‘pat downs,’” it was within the scope of

his legal duties. See DO 708, § 1.6. However, another Department Order strictly

prohibits “sexual harassment and any sexual contact or conduct between staff and

inmates.” DO 125, § 1.2. Therefore, we reject Ramirez’s argument that his

alleged sexual contact with Goff was within the scope of his legal duties.

Ramirez’s assertion that certain allegations in the second amended complaint

conceded that his conduct was “within the scope of [his] legal duty” for purposes

of section 31-201.01(F) is unpersuasive because the allegations are reasonably

3 viewed as pleading Arizona’s vicarious liability and Ramirez’s individual liability

in the alternative.

II.

The district court properly denied Ramirez’s assertion that he was entitled to

qualified immunity from Goff’s § 1983 claims alleging that Ramirez “grabb[ed]

Ms. Goff’s breasts and other body parts during ‘pat downs’ and forc[ed] himself

against her for his own sexual pleasure.”1 When a defendant presents a qualified

immunity defense in a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), “dismissal is not appropriate unless we can determine, based on the

complaint itself, that qualified immunity applies.” Groten v. California, 251 F.3d

844, 851 (9th Cir. 2001).

Qualified immunity protects government officials acting in their official

capacities from civil liability unless their conduct violates “clearly established

statutory or constitutional rights of which a reasonable person would have known.”

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Goff asserts that Ramirez

engaged in excessive force in violation of the Fourth and Eighth Amendments.

The allegations that Ramirez grabbed Goff’s breasts and other body parts

during non-routine “pat downs,” forced himself against her for his own sexual

1 Ramirez does not argue that he is entitled to qualified immunity from Goff’s claim that he forced her to perform oral sex on him.

4 pleasure, and that during each encounter Ramirez’s conduct grew more “aggressive

and violent” are sufficient to state a claim that Ramirez violated Goff’s Eighth

Amendment rights. See Schwenk v. Hartford, 204 F.3d 1187, 1197-98 (9th Cir.

2000).

We are unpersuaded by Ramirez’s argument that the law was not clearly

established at the time of the non-routine “pat downs” and unsolicited physical

contact such that a reasonable corrections officer would not have known that his

actions were unlawful under the Eighth Amendment. See White v. Pauly, ___

U.S. ___, 137 S. Ct. 548, 551 (2017) (for a right to be clearly established there

does not need to be a case directly on point, but “‘existing precedent must have

placed the statutory or constitutional question beyond debate.’”) (quoting Mullenix

v. Lewis, 577 U.S. ___, 136 S. Ct. 305, 308 (2017)). We agree with the district

court that our decision in Schwenk clearly established an inmate’s Eighth

Amendment right not to be sexually abused by a corrections officer who grabbed

the inmate’s breasts and other body parts and forced himself against the inmate in a

sexual manner regardless of the gender of the officer or the inmate. 204 F.3d at

1197-98. Taking Goff’s allegations as true, no reasonable corrections officer could

have thought that engaging in unsolicited and forcible sexual contact with an

inmate was reasonable under the circumstances.

Additionally, we agree with the district court that Ramirez’s assertion of

5 qualified immunity was based on an inaccurate characterization of Goff’s

allegations as describing routine pat down searches and an inaccurate identification

of the Fourth Amendment right at issue.2 The district court’s order did not

specifically address whether the allegations stated an excessive force claim under

the Fourth Amendment or whether it was clearly established that Ramirez’s alleged

conduct would have violated the Fourth Amendment. However, dismissal of the

Fourth Amendment claim is inappropriate because, based on the second amended

complaint itself, we cannot determine that qualified immunity applies. See Groten,

251 F.3d at 851.

AFFIRMED.

2 Ramirez cited cases that involved routine searches and considered whether an inmate had a right to privacy under the Fourth Amendment. See Somers v. Thurman, 109 F.3d 614, 617-20 (9th Cir. 1997); Grummet v. Rushen, 779 F.2d 491, 493, 495- 96 (9th Cir. 1985). Goff, however, asserts an excessive force claim under the Fourth Amendment.

6