Salman et al v. Phoenix, City of et al

Filing 21

ORDER granting 9 Motion to Add Exhibits to Amended Complaint; granting 13 Motion to Dismiss Plaintiff's conspiracy claim. (See document for further details). Signed by Judge Frederick J Martone on 8/5/11.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Salman and Suzanne Salman,

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Plaintiffs,

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vs.

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City of Phoenix, et al.,

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Defendants.

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No. CV 11-0646-PHX-FJM
ORDER

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We have before us defendants’ motion to dismiss (doc. 13), plaintiffs’ response (doc.

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claim on the grounds that it is barred by the intracorporate conspiracy doctrine or because

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plaintiffs have failed to allege an actual conspiracy. We also have plaintiffs’ unopposed

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motion to add exhibits to their amended complaint (doc. 9).

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We assume as true the following facts alleged in plaintiffs’ complaint (doc. 6).

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Plaintiffs, a married couple who reside in Phoenix, are “Born Again Christians.” They allege

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that they wish to hold “private bible study groups” in their home, as well as display religious

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signage on their property. In February 2007, plaintiffs met with neighbors and defendant

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Councilman Claude Mattox. Defendant Councilman Mattox informed plaintiffs that they

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must discontinue the bible studies, because they constituted “church use,” for which plaintiffs

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lacked the required permits. On April 7, 2007, members of the Phoenix Fire Department

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came to plaintiffs’ home while they were hosting a Passover dinner for between fifteen and

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twenty people, and ordered plaintiffs’ guests to leave. In May 2007, plaintiffs submitted

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construction plans for a building to be used for worship and bible study. In December 2007,

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defendant Councilman Mattox made a motion to change the parking requirements for places

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of worship. Because of these changes, plaintiffs had to withdraw their building permit

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application. In November 2008, plaintiffs applied for a permit for a building in their

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backyard. In a meeting on April 6, 2009, defendant City of Phoenix City Manager David

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Cavosos told plaintiff Michael Salman about concern that the building would be used as a

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church. Plaintiffs ultimately received the permit, constructed the building, and moved their

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worship into it. Plaintiffs hosted an average of forty to fifty people at their home for bible

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studies or worship, whom they allege are all “family and friends.” Complaint, ¶¶ 67–69.

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On June 11, 2009, pursuant to a search warrant, Phoenix Police Department officers

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entered and searched plaintiffs’ home. Defendant Inspector Frank Dancil issued a notice of

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violation to plaintiffs. During the search, defendant Officer Oscar Cortez picked up a sign

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that had been face down and placed it against a tree. The sign said “Christian Worship,

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Sunday 10:00 AM, Wednesday 7:00 PM.” In May 2010, plaintiff Michael Salman was

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charged with sixty-seven building and zoning code violations. On September 27, 2010,

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plaintiff Michael Salman was found guilty, and sentenced to sixty days in jail and three

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years’ probation by the Municipal Court of the City of Phoenix. His appeal is currently

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pending.

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In January 2011, plaintiff Suzanna Salman was charged with displaying biblical

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scripture on a reader board in front of plaintiffs’ residence in violation of city codes. On

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March 21, 2011, Fire Department inspectors entered and inspected plaintiffs’ property,

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pursuant to a warrant. Plaintiff Michael Salman was charged with seven building code

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violations.

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Plaintiffs allege that defendants City of Phoenix, Councilman Mattox, Inspector

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Dancil, and Officer Cortez conspired to deprive plaintiffs of their rights under the United

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States Constitution, the Arizona Constitution, the Religious Land Use and Institutionalized
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Persons Act, 42 U.S.C. § 2000cc, et seq., and the Arizona Free Exercise of Religion Act,

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A.R.S. § 41-1493, et seq. Complaint, ¶ 230. Defendants move to dismiss on the grounds that

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plaintiffs have not alleged a specific, conspiratorial agreement. “[L]iability for civil

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conspiracy requires that two or more individuals agree and thereupon accomplish an

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underlying tort which the alleged conspirators agreed to commit.” Wells Fargo Bank v.

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Arizona Laborers, Teamsters and Cement Masons, 201 Ariz. 474, 498, 38 P.3d 12, 36 (2002)

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(citation omitted).

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We agree that plaintiffs have not alleged the requisite agreement to participate in a

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tort. See Wells Fargo, 201 Ariz. at 499, 38 P.3d at 37. While the complaint lists numerous

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acts by defendants City of Phoenix and several of its employees, plaintiffs have not alleged

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that defendants acted in concert pursuant to any kind of agreement. See Restatement

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(Second) of Torts § 876 cmt. a (1979) (“Parties are acting in concert when they act in

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accordance with an agreement to cooperate in a particular line of conduct or to accomplish

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a particular result.”). Plaintiffs’ allegations describe only defendants’ repeated efforts to

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enforce the law, in accordance with the responsibilities of their employment. Such actions

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alone cannot constitute an agreement to deprive plaintiffs of their legal rights. In the absence

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of any allegations of an actual agreement, plaintiffs’ claim for civil conspiracy fails as a

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matter of law.

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We therefore need not reach defendants’ argument that because plaintiffs allege only

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defendant City of Phoenix and its employees acted as conspirators, the intracorporate

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conspiracy doctrine bars plaintiffs’ conspiracy claim.
II

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Plaintiffs move for leave to add exhibits which were included in their original

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complaint but inadvertently omitted from their amended complaint (doc. 9). Defendants have

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not opposed the motion, and it is granted.
III

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IT IS ORDERED GRANTING defendants’ motion to dismiss plaintiffs’ conspiracy
claim (doc. 13).
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IT IS ORDERED GRANTING plaintiffs’ motion to add exhibits to their amended
complaint (doc. 9).
DATED this 5th day of August, 2011.

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