West v. Mesa, City of et al

Filing 71

ORDER - Defendant United States' motion for reconsideration 66 is granted and Plaintiff's motion for reconsideration 68 is denied. Count four will be reinstated against the United States. Signed by Judge David G Campbell on 5/15/2015. (ACL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl West,

No. CV-12-00657-PHX-DGC
Plaintiff,

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v.

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ORDER

Mesa, City of, et al.,

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Defendants.

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Plaintiff and Defendant United States have filed motions for reconsideration.

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Docs. 66, 68. Plaintiff joins in the United States’ motion. The Court will grant the

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motion of the United States and deny Plaintiff’s motion.

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I.

Legal Standard.

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Motions for reconsideration are disfavored and should be granted only in rare

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circumstances. Collins v. D.R. Horton, Inc., 252 F. Supp. 2d 936, 938 (D. Ariz. 2003). A

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motion for reconsideration will be denied “absent a showing of manifest error or a

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showing of new facts or legal authority that could not have been brought to [the Court’s]

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attention earlier with reasonable diligence.” LRCiv 7.2(g)(1); see Carroll v. Nakatani,

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342 F.3d 934, 945 (9th Cir. 2003). Mere disagreement with an order is an insufficient

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basis for reconsideration. See Ross v. Arpaio, No. CV-05-4177-PHX-MHM, 2008 WL

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1776502, at *2 (D. Ariz. 2008). Nor should reconsideration be used to ask the Court to

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rethink its analysis. United States v. Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz.

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1998); see N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th

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Cir. 1988).

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II.

The United States’ Motion.

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On April 29, 2015, the Court dismissed for lack of subject-matter jurisdiction

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Plaintiff’s state law malicious prosecution claim (count four) brought against the United

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States as substitute party defendant for failure to exhaust administrative remedies under

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the Federal Tort Claims Act (“FTCA”). Doc. 64 at 15-16. The Court found that Plaintiff

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has “failed to allege that he presented his claim to the FBI or other appropriate federal

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agency and that it was denied,” and thus the Court found it lacked jurisdiction over the

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claim. Doc. 64 at 15. The United States now concedes that Plaintiff exhausted the claim

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and asserts it did not move to dismiss for failure to exhaust. Doc. 66, ¶ 5. It points to

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Exhibit F in Case No. 14-254, which is a copy of a complaint Plaintiff submitted to the

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FBI. Case No. 14-254, Doc. 8-7.

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Exhibit F contains the same allegations as all of Plaintiff’s complaints in this

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matter. See Docs. 1-2, 23, 26, 27-2, 65; Case No. 14-254, Docs. 1, 18. Plaintiff

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submitted his administrative complaint to the FBI on August 19, 2013, approximately six

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months before he filed his second action in this Court on February 10, 2014. Case No.

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14-254, Doc. No. 1. Although there is no actual evidence that the claim was denied by

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the FBI, the Court may treat the claim as denied if the agency fails “to make a final

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disposition of [the] claim within six months after it is filed[.]” 28 U.S.C. § 2675(a).

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With these facts in mind, the Court finds that Plaintiff exhausted his count four

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claim. When Plaintiff filed his first complaint in Case No. 12-657, he did not bring

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claims under the FTCA because the United States had not sought to substitute itself as

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party defendant on count four. Before filing Case No. 14-254, Plaintiff sought to exhaust

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his claim by submitting a complaint to the FBI. The two cases were then consolidated,

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effectively serving to amend Plaintiff’s first complaint. Given this unique procedural

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posture, coupled with the fact that the United States concedes that Plaintiff properly

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presented the claim to the appropriate agency, the Court will reinstate count four brought

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against the United States as substitute party defendant. See Valadez-Lopez v. Chertoff,

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656 F.3d 851, 855-56 (9th Cir. 2011) (finding claimant exhausted claims where the

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original complaint did not seek relief under the FTCA, but plaintiff later amended the

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complaint after exhaustion to include FTCA claim against the United States, and noting

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“[t]here is nothing in the statute or case law that would prevent a plaintiff from amending

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an existing complaint asserting non-FTCA claims to name the United States as a

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defendant and include FTCA claims once those claims have been administratively

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exhausted”). The individual Defendants remain dismissed from count four.

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III.

Plaintiff’s Motion.

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Plaintiff first argues that the Court should have found that Defendants Brian

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Truchon and Jeffrey Jacobs “were at times state actors and at other times federal actors.”

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Doc. 68 at 2. He asserts this is a question of fact for the jury. But Plaintiff failed to argue

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this point in his response to Defendants’ motions to dismiss, and the Court may reject the

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argument solely on this ground.

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Contractors, 215 F.R.D. 581, 582 (D. Ariz. 2003) (“Motions for reconsideration are

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disfavored, however, and are not the place for parties to make new arguments not raised

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in their original briefs.”).

See Motorola, Inc. v. J.B. Rodgers Mech.

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The Court also noted in the order that such an argument would have failed

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“because ‘it is legally inconsistent to allow simultaneous claims for violations of Section

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1983 and Bivens against the same defendants.’”

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Amoakohene v. Bobko, 792 F. Supp. 605, 608 (N.D. Ill. 1992)). In addition, Plaintiff

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failed to rebut the Scope Certification, which was prima facie evidence that both Truchon

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and Jacobs were acting within the scope of their federal employment. See Billings v.

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United States, 57 F.3d 797, 800 (9th Cir, 1995). Thus, to the extent that Plaintiff asserts

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the “Court misapplied the law as it relates to the employment context,” the Court

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disagrees.

Doc. 64 at 13-14 n.7 (quoting

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Plaintiff further argues the Court erred in finding that Jacobs was acting under

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color of federal law. During briefing, the parties argued this issue extensively and the

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Court found that Plaintiff failed to rebut the Scope Certification. Plaintiff merely asks the

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Court to rethink its analysis, which the Court declines to do. See Rezzonico, 32 F. Supp.

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2d at 1116.

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Plaintiff argues that the Court improperly dismissed his abuse of process claim.

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He claims that Defendants’ scheme to have two witnesses killed and continue an affair

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constitutes an improper use of the judicial process. “Abuse of process is a definite act or

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threat not authorized by the process, or aimed at an objective not legitimate in the course

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of the process.” Donahue v. Arpaio, 869 F. Supp. 2d 1020, 1060 (D. Ariz. 2012)

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(internal quotation marks omitted). Plaintiff does not allege that Defendants began any

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legal process intending a result not contemplated by the process, such as prosecuting an

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individual in order to extort money. The allegations simply state that Defendants sought

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to prosecute Plaintiff without probable cause. As the Court noted in the order, initiating a

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prosecution without justification is not an improper purpose sufficient for a claim of

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abuse of process. See Crackel v. Allstate Ins. Co., 92 P.3d 882, 888 (Ariz. Ct. App.

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2004).

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Plaintiff also appears to argue that new evidence demonstrates direct involvement

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by Truchon sufficient to state a Bivens claim. The evidence submitted by Plaintiff

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consists of two exhibits. Doc. 69-1, Exs. 3, 4. The first exhibit details the role of

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Truchon as supervisor and states that he is in charge of the “day-to-day operation and

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administrative control” of the Violent Street Gangs Task Force. The second exhibit is a

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memo written by Truchon notifying Oklahoma City that he was sending a cooperating

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witness with a suspect who was traveling to Oklahoma City. In its order, the Court

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dismissed the Bivens claim against Truchon because Plaintiff set forth the exact same

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allegations that the Court had previously found deficient. The evidence now presented by

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Plaintiff does not change the insufficiency of his pleading. Nor does it demonstrate more

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than mere “supervisory liability” alleged against Truchon, which the Supreme Court has

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repeatedly held insufficient, see Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (holding that

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individuals may only “be held liable [if] they themselves acted in violated of [a] citizen’s

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constitutional rights”) (internal quotations omitted). Plaintiff fails to allege that Truchon

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took any direct action that violated his constitutional rights, and the additional evidence

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does not aid Plaintiff’s argument.

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Plaintiff finally requests that the Court permit him to amend his § 1985 conspiracy

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claim. The Court dismissed the claim because the complaint contained no allegations

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about “Plaintiff’s race, the race of Defendants, the race of other participants in the state

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prosecution, or any other facts that would suggest that the wrongs alleged were in any

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way related to race.” Doc. 64 at 16 (internal quotation omitted). Plaintiff has repeatedly

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failed to correct his deficient pleading in this case, even when the Court specifically

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identified the deficiency. See Doc. 27-2, ¶¶ 65-68; Doc. 23, ¶¶ 65-68; Case No. 14-254,

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Doc. 18, ¶¶ 65-68. Plaintiff now seeks leave to allege his own race, but he does not

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request that he be permitted to allege any other facts that would suggest racial animus or

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motive behind the alleged wrongful conduct, nor does he seek to include any facts the

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Court noted would be relevant to such a claim. The Court denies Plaintiff’s request.

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In sum, Plaintiff has failed to show manifest error in the Court’s decision. He has

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also failed to provide new facts or legal authority that would have changed the outcome.

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Plaintiff’s motion will be denied.

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IT IS ORDERED that Defendant United States’ motion for reconsideration

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(Doc. 66) is granted and Plaintiff’s motion for reconsideration (Doc. 68) is denied.

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Count four will be reinstated against the United States.

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Dated this 15th day of May, 2015.

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