Dowling et al v. Arpaio et al

Filing 151

ORDER that Arpaio Defendants' First Motion for Summary Judgment 56 is granted in part with respect to Counts I and III of the Complaint, and denied in part with respect to Counts IV, V and VI. Signed by Judge James A Teilborg on 3/8/11.(TLJ)

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Dowling et al v. Arpaio et al Doc. 151 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Sandra Dowling and Dennis Dowling,) husband and wife ) ) Plaintiffs, ) ) vs. ) ) Sheriff Joseph Arpaio and Ava Arpaio,) husband and wife; Maricopa County Board) of Supervisors; Maricopa County, a) Municipal entity; John Does IX; Jane) Does IX; Black Corporations IV; White) Partnerships IV, ) ) Defendant. ) ) No. 09-1401-PHX-JAT ORDER Pending before this Court is the Arpaio Defendants' First Motion for Summary Judgment (Dkt. 56) that Defendants Maricopa County Board of Supervisors and Maricopa County joined (Dkt. 57). As permitted by the Court, Plaintiffs Sandra Dowling and Dennis Dowling filed responses in opposition to the First Motion for Summary Judgment (Dkt. 70, 80),1 and Defendants filed a consolidated reply (Dkt. 91, 92). A hearing on the First Motion Pursuant to the Court's limited grant of Plaintiffs' motion for relief under Rule 56(f) of the Federal Rules of Civil Procedure, Plaintiffs were permitted to file a second response to the First Motion for Summary Judgment after additional discovery on the statute of limitations issue was completed. (Dkt. 73.) On March 4, 2011, Plaintiffs filed a second supplemental response to the First Motion. (Dkt. 14748.) The Court ordered the second supplemental response be stricken from the record as untimely. (Dkt. 149.) 1 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was held on March 7, 2011. For the reasons that follow, the Court grants the First Motion for Summary Judgment in part with respect to Plaintiffs' state law claims, but denies the motion with respect to Plaintiffs' 1983 claims. I. BACKGROUND Plaintiff Sandra Dowling ("Dowling") was the Superintendent of Public Instruction for Maricopa County, Arizona from 1988 to 2008. (Defendants' Statement of Facts, Dkt. 58 ["DSOF"] 1; Plaintiffs' Controverting and Supplemental Statement of Facts, Dkt. 71 ["PSOF"] 1.) As Superintendent, Dowling oversaw an accommodation district, known as the Maricopa County Regional School District (the "MCRSD"). (DSOF 2; PSOF 2.) Dowling served as the sole member of the governing board of the MCRSD. (DSOF 3; PSOF 3.) By 2006, there were 12 schools in the MCRSD, which included three campuses of the Thomas J. Pappas School for homeless children. (DSOF 2; PSOF 2.) The Maricopa County Board of Supervisors (the "Board") was required to annually budget an amount that would meet the requirements of the special county school reserve fund, including the necessary expenses for conducting accommodation schools. A.R.S. 151001(A)(5). The MCRSD operated a budget deficit for many years. (DSOF 4; PSOF 4.) Each year in which the deficit occurred, the Maricopa County Treasurer covered the MCRSD deficit with County funds. (PSOF 43.) In 2005, the Board asked Tom Horne, State Superintendent of Public Instruction, to investigate the financial situation of the MCRSD. (DSOF, Ex. 3 at p. 5; PSOF 4850.) Mr. Horne determined that the MCRSD had been under-funded by $3.5 million over approximately five years. (PSOF 4; DSOF 5 & Ex. 3 at p. 5.) On January 11, 2006, at the request of the Board, the Maricopa County Sheriff's Office ("MCSO") initiated a criminal investigation of Dowling and others at the MCRSD. (DSOF 7; PSOF 7.) As part of its investigation, MCSO obtained and executed a search warrant for MCRSD offices on January 25, 2006. (DSOF 8; PSOF 8.) Also on January 25, 2006, MCSO obtained and executed a search warrant for Dowling's home. (DSOF 1314; PSOF 1314.) -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to A.R.S. 12-821.01, Plaintiffs served a 19-page Notice of Claim letter, dated July 10, 2006 (the "2006 Notice of Claim"), on Defendants (and others). (PSOF 16, DSOF 16 & Ex. 3.) The 2006 Notice of Claim sets forth legal claims for defamation, intentional inflictions of emotional distress, depravation of civil rights, abuse of process/malicious prosecution, and abuse of government resource. (DSOF, Ex. 3 at pp. 1718.) The criminal investigation conducted by MCSO resulted in a grand jury's indictment of Dowling on 25 felony counts on November 16, 2006. (DSOF 7; PSOF 7, 17.) After being indicted, Dowling was booked and arraigned on the multiple felony counts. (DSOF 18; PSOF 18.) On May 4, 2007, based on motions filed by Dowling's attorney, counts 110 of the indictment were remanded to the grand jury. (DSOF 19; PSOF 19.) In or around June 2007, the prosecution of the criminal case was transferred from the Arizona Attorney General's Office to the United States Attorney's Office due to a conflict of interest. (DSOF 20; PSOF 20.) On August 26, 2008, the Court accepted a Plea Agreement, dated July 11, 2008, entered into by the State of Arizona and Dowling. (DSOF 23; PSOF 2223.) The Plea Agreement, in the case captioned CR 2008-007162, provided that Dowling agreed to plead guilty to a misdemeanor (employment of a relative), and the parties stipulated to the following additional item, among other items, "[a]t the time of sentencing, Counts 110 that were previously dismissed on August 20, 2007, and the remaining Counts in CR 2006012508 (Counts 1123 and Counts 2627) will be dismissed with prejudice." (DSOF, Ex. 15 at p. 1.) On September 25, 2008, Plaintiffs served a Notice of Claim letter (the "2008 Notice of Claim") on Defendant Sheriff Joseph Arpaio and the Board. (DSOF 26 & Ex. 1; PSOF 26.) The 2008 Notice of Claim states that it was served "in connection with the investigation, arrest, and malicious prosecution of Sandra Dowling," and sets forth causes of action for negligence, reckless conduct, gross negligence, infliction of emotional distress, malicious prosecution, abuse of process, and law enforcement retaliation under Arizona law -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and 42 U.S.C. 1983. (DSOF , Ex. 1 at pp. 3, 10.) On June 3, 2009, Plaintiffs filed the Complaint in this action in Maricopa County Superior Court (Dkt. 1-1, Ex. A), and Defendants subsequently removed this action to the United States District Court (Dkt. 1). On July 27, 2010, the Court permitted Defendants to file two motions for summary judgment. (Dkt. 53.) A first motion for summary judgment could be filed on statute of limitations issues, and a second motion for summary judgment on the merits could be filed after the close of discovery. On August 27, 2010, Defendants filed the pending First Motion for Summary Judgment. (Dkt. 56.) This motion addressed the malicious prosecution claim on its merits, in addition to statute of limitations issues. (Dkt. 56 at pp. 1017.) Recognizing the violation of the Court's Order, Defendants filed a motion to withdraw the substantive arguments made in the First Motion for Summary Judgment, and to preserve those arguments for a second motion for summary judgment. (Dkt. 87.) The Court granted the motion to withdraw (Dkt. 116); therefore, this Order will not consider any of the substantive arguments made by either party in connection with the merits of Plaintiffs' malicious prosecution claim (Count II of the Complaint). II. LEGAL STANDARD Summary judgment is appropriate when "the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." FED.R.CIV.P. 56(a). A party asserting that a fact cannot be or is genuinely disputed must support that assertion by "citing to particular parts of materials in the record," including depositions, affidavits, interrogatory answers or other materials, or by "showing that materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Id. 56(c)(1). Thus, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Initially, the movant bears the burden of pointing out to the Court the basis for the -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 motion and the elements of the causes of action upon which the non-movant will be unable to establish a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmovant to establish the existence of material fact. Id. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts" by "com[ing] forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 58687 (1986) (quoting FED.R.CIV.P. 56(e) (1963) (amended 2010)). A dispute about a fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, in the summary judgment context, the Court construes all disputed facts in the light most favorable to the non-moving party. Ellison v. Robertson, 357 F.3d 1072, 1075 (9th Cir. 2004). III. ANALYSIS Defendants argue that Counts I, III, IV, V and VI of Plaintiffs' Complaint are barred by their respective statutes of limitations.2 (Dkt. 56 at p. 6.) Defendants generally argue that these Counts accrued, if at all, by November 2006. A. State Law Claims Counts I and III Defendants seek entry of judgment in their favor with respect to two of Plaintiffs' three state law claims: Count I (Negligence/Gross Negligence) and Count III (Abuse of Process) on the grounds that Plaintiffs' claims are barred by the statute of limitations. The parties dispute the relevant statute of limitations period for Plaintiffs' state law claims. Plaintiffs argue the relevant statute of limitations is two years pursuant to A.R.S. 12-542. Whereas, Defendants argue the statute of limitations is one year pursuant to A.R.S. 12-821. Section 12-821 of the Arizona Revised Statutes limits the time period in which actions can be brought against public entities and public employees: "All actions against any public entity or public employee shall be brought within one year after the cause of action Defendants do not argue that Count II (Malicious Prosecution) in the Complaint is time barred; therefore, this claim survives the First Motion for Summary Judgment. -5- 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 accrues and not afterward." Because Plaintiffs have filed suit against a public employee and public entities, the correct statute of limitations with respect to Plaintiffs' state law negligence and abuse of process claims is one year. See e.g., Stulce v. Salt River Project Agric. Improvement & Power Dist., 3 P.3d 1007, 1008 (Ariz. App. 1999) (affirming the dismissal of a negligence suit against a public entity based on the plaintiff's failure to bring the suit within one year as required by A.R.S. 12-821). Due to the one-year statute of limitations period, Plaintiffs' state law claims are untimely if they did not accrue within one year of the filing of the Complaint. Plaintiffs filed their Complaint on June 3, 2009; therefore, their state law claims are untimely if the claims did not accrue after June 3, 2008. Defendants argue that, as evidenced by the 2006 Notice of Claim, Plaintiffs knew they were injured as early as July 10, 2006. (Dkt. 91 at p. 2.) Plaintiffs argue that the conduct complained of continued up until the time that all 25 felony counts were dismissed on August 26, 2008, which is within the limitations period. (Dkt. 70 at p. 1.) Defendants respond to this argument by alleging that Plaintiffs' state law claims are not continuing torts, and the post-2006 conduct of Defendants was neither continuous, nor tortious. (Dkt. 91 at pp. 45.) In Count I of the Complaint, Plaintiffs allege negligence and gross negligence with respect to Defendants' investigation, encouragement and provision of information on which the criminal prosecution was based. (Dkt. 1-1, Ex. A at 73.) In Count II of the Complaint, Plaintiffs allege Defendants engaged in an abuse of process by participating in the criminal investigation and prosecution of Dowling, which investigation resulted in an indictment. (Id. at 84.) Both of these claims involve the Defendants' roles in investigating and aiding the prosecution of Dowling. Plaintiffs argue in their response that Defendants' involvement did not cease with the indictment of Dowling on November 16, 2006: "While some of the conduct engaged in by Defendants which gave rise to these claims began in 2006, that same conduct continued up until the time the charges were dismissed in the summer of 2008." (Dkt. 70 at p. 9.) Plaintiffs correctly note that a claim for negligent investigation may accrue after the -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 arrest of a plaintiff, if the investigation occurred after the arrest, Mohajerin v. Pinal County, 2007 WL 4358254, *6 (D. Ariz. Dec. 7, 2007), and a claim for abuse of process can accrue at any time during the course of litigation, id. at *5. Accordingly, Plaintiffs' claims for negligence/gross negligence and abuse of process are not barred simply because Dowling's indictment occurred more than one year before Plaintiffs commenced this action. The Complaint contains factual allegations regarding the prosecution of Dowling, which did not end until August 26, 2008, when the Plea Agreement was approved and the felony counts dismissed. Under certain conditions, a tort can be continuous and the statute of limitations does not begin to run until the date of the last tortious act. Floyd v. Donahue, 923 P.2d 875, 879 (Ariz. App. 1996) (citing Garcia v. Sumrall, 121 P.2d 640, 643 (Ariz. 1942) (holding that where a trespass is continuing in nature, an action may be brought any time within two years of the last trespass, but damages are recoverable only for trespass occurring within the limitations period)). However, there is no authority under Arizona law for the proposition that the torts of negligence and abuse of process are continuing torts. A commission of either of these torts may have continuing effects, but those continuing effects do not forestall the accrual of a cause of action. Under A.R.S. 12-821.01(B), "a cause of action accrues when the damaged party realizes he or she has been damaged and knows or reasonably should know the cause, source, act, event, instrumentality or condition which caused or contributed to the damage." The term "accrual" in A.R.S. 12-821.01(B) is construed in accordance with the common law discovery rule. Little v. State, 240 P.3d 861, 864 (Ariz. App. 2010). As long as a plaintiff has notice of wrongful conduct, it is not necessary that the plaintiff have knowledge of all the details in order for the cause of action to accrue. Doe v. Roe, 955 P.2d 951, 962 (Ariz. 1998) ("A plaintiff need not know all the facts underlying a cause of action to trigger accrual."); CDT, Inc. v. Addison, Roberts & Ludwig, C.P.A., 7 P.3d 979, 982 (Ariz. App. 2000) ("[A]ccrual requires only actual or constructive knowledge of the fact of damage, rather than of the total extent or calculated amount of damage[.]"). A cause of action accrues -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 when a plaintiff discovers the injury is attributable to a particular defendant's conduct. Lawhorn v. L.B.J. Inst. Supply, Inc., 765 P.2d 1003, 1007 (Ariz. App. 1988). The cause of action does not accrue until the plaintiff knows both the "what" and "who" elements. Id. It is clear that Plaintiffs had notice of Defendants' conduct giving rise to the claims by July 10, 2006, when the 2006 Notice of Claim was served on Defendants. The 2006 Notice of Claim identifies the persons and the actions that give rise to the same causes of action set forth in the Complaint, albeit at the early state of the investigation of Dowling. Certainly, Plaintiffs had sufficient notice of the allegedly wrongful conduct described in Counts I and II of the Complaint as early as November 16, 2006, when the investigation of Dowling culminated in her indictment. The Complaint does not allege any additional basis for a claim of negligence or abuse of process that did not stem from the Board's and MCSO's investigation and assistance with the indictment of Dowling. Because the continuing violation theory does not apply to the torts of negligence and abuse of process, the continuation of the investigation and the criminal prosecution does not toll the statute of limitations when Plaintiffs were aware of the allegedly wrongful conduct more than one year before the Complaint was filed. Plaintiffs argue that Defendants' continued participation in the investigation and prosecution of Dowling is actionable in and of itself, and occurred within the limitation period.3 (Dkt. 70 at p. 13.) As set forth in Plaintiffs' supplemental statement of facts, the allegedly wrongful conduct occurring after June 3, 2008, which is within the limitations period, is based on allegations that the Board's attorney objected to a provision of the Plea Agreement and that MCSO continued its investigation of Dowling until the Plea Agreement was finalized. (Dkt. 81.) These actions do not constitute wrongful acts rising to the level of separately actionable torts. Plaintiffs do not allege any facts to indicate how Defendants' continuation of an investigation or aid to prosecutors after June 3, 2008 satisfies the elements Plaintiffs base this argument on the two-year statute of limitations for personal torts, not the applicable one-year statute of limitations for actions against public entities. -8- 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of negligence4 or abuse of process.5 Accordingly, Plaintiffs' claims for negligence and abuse of process (Counts I and II of the Complaint) are barred by the statute of limitations, because Plaintiffs were aware of the wrongful conduct alleged in the Complaint as early as November 16, 2006, and failed to bring a cause of action within the one-year limitations period. Further, based on the date on which the Complaint was filed, Plaintiffs have not alleged facts to support timely state law claims that accrued within the one-year limitations period. B. Section 1983 Claims Counts IV, V and VI Defendants also seek an entry of judgment in their favor with respect to Count IV (42 U.S.C. 1983 Unconstitutional Policies, Customs, and Failure to Train), Count V (Conspiracy to Commit Violations of 42 U.S.C. 1983),6 and Count VI (Violations of 42 U.S.C. 1983: Free Speech, Law Enforcement Retaliatory Conduct, Malicious and Selective Prosecution, and Abuse of Process) on the grounds that Plaintiffs' 1983 claims are barred by the statute of limitations. "Section 1983 does not contain its own statute of limitations." TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1998). Therefore, federal courts must apply a statute of To establish a cause of action for negligence, a plaintiff must show a duty, a breach of that duty, causation, and injury or damages. Saucedo v. Salvation Army, 24 P.3d 1274, 1278 (Ariz. App. 2001). To establish a cause of action for abuse of process, a plaintiff must show that the defendant has used a legal process against the plaintiff primarily to accomplish a purpose for which the process was not designed, and harm has been caused to the plaintiff by such misuse of process. Nienstedt v. Wetzel, 651 P.2d 876, 881 (Ariz. App. 1982). Plaintiffs argue that Defendants have presented no substantive grounds for dismissal of Count V (Conspiracy to Commit Violations of 42 U.S.C. 1983), and should be barred from addressing this claim in Defendants' reply brief. (Dkt. 70 at p. 9 n.10.) Defendants refer to Counts IV, V and VI of the Complaint generically and inclusively as "Plaintiffs' civil rights claims under 1983." (Dkt. 56 at p. 10). Defendants continue to refer to Plaintiffs' three 1983 claims in this manner in their reply brief. Even though Defendants briefly address Plaintiffs' civil conspiracy argument, there is no reason to ignore Defendants' treatment of Count V in their reply brief. -96 5 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 limitations from the forum state to 1983 claims. Id. Because the Supreme Court has "directed the lower federal courts in 1983 cases to borrow the state-law limitations period for personal injury claims," Felder v. Casey, 487 U.S. 131, 140 (1988), federal courts in Arizona apply a two-year statute of limitations to all 1983 claims, TwoRivers, 174 F.3d at 991; see A.R.S. 12-542. Plaintiffs were required to file their complaint within two years of the date that the alleged 1983 causes of action accrued. Madden-Tyler v. Maricopa County, 943 P.2d 822, 826 (Ariz. App. 1997). Federal courts look to federal, not state, law to determine when a 1983 claims accrues. TwoRivers, 174 F.3d at 991 (citing Elliott v. City of Union City, 24 F.3d 800, 80102 (9th Cir. 1994)). Under federal law, a 1983 claim, "accrues when a plaintiff knows or has reason to know of the injury which is the basis of the action." Id. (citing Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir. 1996)). Based on the two-year limitations period, Plaintiffs' claims are untimely if they did not accrue within two years of the filing of the Complaint. Defendants acknowledge that the continuing violation theory applies to 1983 claims, but argue that Plaintiffs failed to allege any wrongful acts committed by Defendants during the limitations period (i.e., after June 3, 2007). (Dkt. 91 at pp. 67.) Plaintiffs argue that Defendants continued to engage in wrongful conduct up until the felony charges against Dowling were dismissed on August 26, 2008, and the claims based on Defendants' continuing conduct were brought within the twoyear limitations period. (Dkt. 70 at p. 10.) The continuing violation theory, which applies to 1983 claims, allows a plaintiff to seek relief for events outside the limitations period. Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001). In order to show a continuing violation, a plaintiff must state facts sufficient to support a determination that the alleged discriminatory acts are related closely enough to constitute a continuing violation, and that one or more of the acts falls within the limitations period. Id. (quoting DeGrassi v. City of Glendora, 207 F.3d 636, 645 (9th Cir.2000)). However, a "mere continuing impact from past violations is not actionable." Id. (quoting and citing numerous authorities). In Knox, the Court of Appeals held that the continuing - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violation doctrine was inapplicable, because the prison's subsequent and repeated denials of Knox's privileges with her clients were merely the continuing effect of her original suspension. Id. With respect to Count V and the continuing conspiracy theory, the Ninth Circuit has determined that the "last overt act" doctrine applies to the accrual of civil conspiracies for limitations purposes. Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986). Under the last overt act doctrine, the injury and damage in a civil conspiracy action flows from the overt acts, not from the mere continuance of a conspiracy, and the cause of action runs separately from each overt act that is alleged to cause damage to the plaintiff. Id. (holding that a plaintiff may recover only for the overt acts that specifically were alleged to have occurred within the limitations period). Contrary to Defendants' contention, the acts alleged in Counts IV, V and VI of the Complaint are not limited to acts occurring prior to the November 16, 2006 indictment of Dowling. With respect to Count IV of the Complaint, Plaintiffs allege that Defendants violated Plaintiffs' constitutional rights by failing to adopt "policies and procedures to ensure due process and equal protection for those subject to investigation and prosecution." (Dkt. 1-1, Ex. A at 91.) Count V of the Complaint alleges that the Defendants' pursuit of the investigation and prosecution of Dowling was undertaken pursuant to a meeting of the minds among Defendants to act in concert to violate Plaintiffs' constitutional rights. (Id. at 10102.) Finally, Count VI of the Complaint alleges that "Dowling was investigated, indicted, and prosecuted by or at the behest of Defendants for improper unconstitutional motives." (Id. at 109.) As noted above, the criminal prosecution of Dowling began with her indictment on November 16, 2006, and ended on August 26, 2008 with the Plea Agreement and dismissal of the felony charges. Plaintiffs' 1983 claims are not barred simply because Dowling's indictment occurred at least two years before Plaintiffs commenced this action. Part of the prosecution and the continued investigation of Dowling occurred within the limitations period for Plaintiffs' 1983 claims. Applying the continuing violation theory, Plaintiffs' 1983 claims are not barred by - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the statute of limitations if the claims are based on discriminatory or overt acts that occurred within the limitations period (i.e., after June 3, 2007). However, Plaintiffs cannot obtain relief against Defendants under 1983 for alleged discriminatory events that occurred outside the two-year statute of limitations period. See Berg v. Cal. Horse Racing Bd., 419 F. Supp. 2d 1219, 1227 (E.D. Cal. 2009). The Court does not need to address Plaintiffs' requested relief at this time. The inquiry currently before the Court is whether Plaintiffs introduced facts, which if viewed in the light most favorable to Plaintiffs, as the non-moving party, raise material questions about whether Defendants continued to discriminate against Dowling within the statute of limitations period. Douglas v. Cal. Dep't of Youth Auth., 271 F.3d 812, 824 (9th Cir. 2001). Plaintiffs allege that "Defendants pushed, encouraged, contributed to, or otherwise participated in the decision to `investigate' and later prosecute Dr. Dowling, all for their own benefit and to further their improper and unconstitutional, political, and retaliatory motives." (Dkt. 1-1, Ex. A at 40) (emphasis added). The Complaint provides that "[u]pon information and belief, other superintendents similarly situated are not subjected to such heavy-handed investigation and prosecution." (Id.) (emphasis added). Plaintiffs allege that "[i]n the `investigation' into Dr. Dowling's activities, the indictment brought against her, her booking, and the subsequent criminal proceedings, the Defendants acted maliciously and without any probably cause to believe that Dr. Dowling was guilty of any of the crimes." (Id. at 62) (emphasis added). Repeated references to the investigation and prosecution clearly expand scope of the Complaint beyond the actions of Defendants prior to the November 16, 2006 indictment. In fact, the Complaint refers to the July 2008 motion to dismiss the remaining felony charges, Dowling's August 26, 2008 guilty plea, and a subsequent civil suit filed by Defendants against Plaintiffs in connection with the MCRSD. (Id. at 5861.) Plaintiffs' supplemental statement of facts sets forth specific actions taken by Defendants after June 3, 2007, in connection with the investigation and prosecution of Dowling. (Dkt. 71 at 7081.) Specifically, Defendants received information and interviewed potential witnesses (id. at 70), picked up the State's audit of the MCRSD (id. - 12 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at 71), met with FBI official to discuss the status of the investigation (id. at 72), continued to follow leads in the open investigation (id. at 73), met with the U.S. Attorney's Office to discuss the dismissal of felony charges (id. at 75), appeared at the sentencing hearing and objected to a provision in the Plea Agreement (id. at 76), wrote to the Judge regarding the enforcement of the Plea Agreement (id. at 77), and continued to pursue a civil action against Plaintiffs (id. at 8081). While the alleged wrongdoing began in 2006, the Complaint, the 2008 Notice of Claim, and Plaintiffs' supplemental statement of facts describe actions taken by Defendants after June 3, 2007, which support continuing violations of 1983 in connection with the investigation and criminal prosecution of Dowling. Because one or more of these alleged acts occurred within the two-year limitations period, the Court finds that Plaintiffs have pled sufficient facts to show that Defendants engaged in actions after June 3, 2007, that, if true, may show a continuing violation of Plaintiffs' constitutional rights under 1983. The merits of Plaintiffs' 1983 claims is not before the Court. Accordingly, Counts IV, V and VI of the Complaint are not barred by the statute of limitations. IV. CONCLUSION Based on the foregoing, the Court will grant the First Motion for Summary Judgment with respect to Plaintiffs' state law claims. Plaintiffs have not alleged any facts to support timely state law claims that accrued within the one-year limitations period. However, the Court will deny the First Motion for Summary Judgment with respect to Plaintiffs' 1983 claims, because Plaintiffs set forth sufficient facts to demonstrate that Defendants' allegedly discriminatory or overt acts related closely enough to constitute a continuing violation, and that one or more of these acts falls within the two-year statute of limitations period. Because the First Motion for Summary Judgment was limited to statutes of limitations issues, the Court has not considered the merits of any of Plaintiffs' claims. Therefore, Defendants may file a second motion for summary judgment on the merits of Counts II, IV, V and/or VI in accordance with the schedule previously set forth by the Court. Accordingly, - 13 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS ORDERED that Arpaio Defendants' First Motion for Summary Judgment (Doc. # 56) is granted in part with respect to Counts I and III of the Complaint, and denied in part with respect to Counts IV, V and VI. DATED this 8th day of March, 2011. - 14 -

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