Schjoll et al v. Gilbert, Town of, et al

Filing 12

ORDER granting 7 Defendants' Motion to Dismiss Case. Clerk is directed to terminate this action. Signed by Judge David G Campbell on 4/20/09.(DMT, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Martin and Julie Schjoll, husband and wife, Plaintiff, vs. Town of Gilbert, a public entity, et al., Defendant.

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No. CV-09-0114-PHX-DGC ORDER

On February 27, 2009, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). Dkt. #7. Plaintiffs have responded, Defendants replied, and Plaintiffs have filed a courtrequested sur-reply. Dkt. ## 8, 9, 11. For the reasons that follow, the Court will grant the motion. I. Background. By 8:00 a.m. on October 13, 2006, pursuant to a court order on joint custody, Plaintiff Martin Schjoll was required to return his son to his ex-wife. When Schjoll failed to arrive on time, his ex-wife called the police. Two City of Gilbert police officers were waiting for Schjoll when he arrived after 9:00 a.m. Schjoll explained why he was late, and Officer Cooke told Schjoll that he was required to write a report on the incident. Cooke wrote the report and concluded with the phrase "case closed by arrest." Cooke listed an address for Schjoll that had not been current for three years.

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The Gilbert County Attorney's Office prosecuted Schjoll, but Schjoll never received notice of the hearing at his current address. When Schjoll failed to appear for the hearing, the judge issued a warrant for his arrest. On July 11, 2007, Schjoll was arrested at his place of work, causing Schjoll humiliation and damage to his reputation. Because Schjoll had never reported the 2006 encounter with the police to his employer, he lost his security clearance and job temporarily. He also lost wages for time off work. An investigation by Schjoll's employer revealed that the City of Gilbert Police Department uses a paperless reporting system that automatically forwards cases "closed by arrest" to the city attorneys. In many cases the individual was not actually arrested, but because the case is "closed by arrest," the report is forwarded. Plaintiff Martin Schjoll and his wife Julie have filed a complaint in this Court. Dkt. #1-2. The complaint's discussion of jurisdiction mentions claims under 42 U.S.C. § 1983, 42 U.S.C. § 1988, and Arizona law, but the § 1988 and Arizona claims are never described. Plaintiffs clarify in their response to Defendants' motion that they are asserting a claim only under § 1983. Dkt. #8 at 4. II. Legal standard. When analyzing a complaint for failure to state a claim under Rule 12(b)(6), "[a]ll allegations of material fact are taken as true and construed in the light most favorable to the non-moving party." Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). "To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead `enough facts to state a claim to relief that is plausible on its face.'" Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007)). III. Analysis. In the motion to dismiss, Defendants assert that Plaintiffs have failed to state a claim under § 1983 for unlawful detention/arrest. Dkt. #7 at 2-3. Plaintiffs respond that they are not bringing a § 1983 claim based on unlawful arrest, but rather based on defamation which deprived Martin Schjoll of his right to privacy under the Arizona constitution and interfered -2-

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with his property rights in his security clearance and employment. Dkt. #8 at 3. Defendants argue in reply that the defamation claim does not implicate any federal constitutional or statutory rights and therefore does not state a cognizable claim under § 1983. Dkt. #9 at 3. "To state a claim for relief in an action brought under § 1983, [plaintiffs] must [allege] that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). "Section 1983 `is not itself a source of substantive rights,' but merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3 (1979)). "It is well settled that section 1983 `imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.'" Johnson v. Barker, 799 F.2d 1396, 1399 (9th Cir. 1986) (quoting Baker, 443 U.S. at 146). In the Ninth Circuit, a plaintiff must satisfy the "stigma-plus" test in order to recover damages for defamation under § 1983. Am. Consumer Publ'g Assoc., Inc. v. Margosian, 349 F.3d 1122, 1125 (9th Cir. 2003). The stigma-plus test requires that Plaintiffs "allege loss of a recognizable property or liberty interest in conjunction with the allegation of injury to reputation." Id. at 1126 (quotation marks omitted). In addition, "the `stigma-plus' test requires that the defamation be accompanied by an injury directly caused by the Government, rather than an injury caused by the action of some third party in reaction to the Government's defamatory statements." Id. (citing WMX Techs., Inc. v. Miller, 80 F.3d 1315, 1320 (9th Cir. 1996) (emphasis in original; brackets omitted). Plaintiffs allege that the defamation which occurred when Officer Cooke falsely wrote that Martin Schjoll had been arrested deprived Schjoll of his right to privacy under the Arizona constitution and interfered with his property rights in his security clearance and employment. Dkt. #1-2 ¶ 46. With regard to the alleged violation of Schjoll's right to privacy under the Arizona constitution, § 1983 only creates a cause of action for violations of the federal constitution and laws. Sweaney v. Ada County, 119 F.3d 1385, 1391 (9th Cir. -3-

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1997). Plaintiffs have not alleged that the Arizona privacy violation is also a violation of federal law. Plaintiffs fare no better on their claim of interference with property rights. Even assuming, without deciding, that there is a recognized property right in Schjoll's security clearance and employment, Plaintiffs' claim fails because this injury was not caused directly by the government, but by the reaction of Schjoll's employer to the alleged defamation. See Am. Consumer, 349 F.3d at 1125. The allegations of the complaint fail to state a claim upon which relief can be granted under § 1983 even when the allegations are assumed to be true and are construed in the light most favorable to Plaintiffs. IT IS ORDERED: 1. 2. Defendants' motion to dismiss (Dkt. #7) is granted. The clerk is directed to terminate this action.

DATED this 20th day of April, 2009.

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