Weymouth et al v. Arizona Department of Liquor Licenses and Control et al

Filing 11

ORDER granting 3 Defendants' Motion to Dismiss. Plaintiffs shall have thirty (30) days from the date of this Order in which to file a First Amended Complaint. Should Plaintiffs fail to file a First Amended Complaint within that time, the Clerk of Court is directed to terminate this matter. Signed by Judge G Murray Snow on 9/21/12.(DMT)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Weymouth and Andrea
Weymouth, husband and wife,

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No. CV-12-979-PHX-GMS
ORDER

Plaintiffs,

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R.

v.
Arizona Department of Liquor Licenses and
Control; Alan Everett, Director of Liquor
Licenses and Control; Jane Doe Everett;
Ruben Ribera, State Liquor Investigator;
Jane Doe Ribera; Mary Maldenado, State
Liquor Investigator; John Doe Maldenado;
Wes Kuhl, State Liquor Special Investigator
Sergeant; Jane Doe Kuhl; Joe Vernier,
Deputy Director of Liquor License and
Control; Jane Doe Vernier; State of
Arizona, as a State Government entity;
Does 1-100,
Defendants.

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Pending before the Court is a Motion to Dismiss filed by all Defendants to this

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action (Doc. 3). For the reasons stated below, the Defendants’ motion is GRANTED.

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The Plaintiffs, however, will have leave to amend.

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BACKGROUND

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Plaintiffs pro se, Brian and Andrea R. Weymouth, bring suit against the

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Defendants over a February 1, 2011 raid of the Weymouths’ private residence and a

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commercial storage facility located in Mesa, and Mr. Weymouth’s subsequent

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indictment, arrest and detention. (Doc. 1, Ex. 3 ¶¶ 42, 46–51, 57, 60–62). The
Weymouths allege that the Maricopa County Sherriff’s Office (“MSCO”), led by Brian
O’Connor, conducted the raid in retaliation for actions taken in what appears to be a
separate dispute between the Weymouths and O’Connor. (Id.) As a result of the raid, the
Weymouths’ property was confiscated but later returned. (Id. ¶ 43). After the raid, the
County convened a grand jury to consider the possibility of charges against Mr.
Weymouth arising out of the information obtained in the raid. (Id. ¶¶ 44-47.) The
Weymouths allege that Maryanne McKessy of the Maricopa County Attorney’s Office
(“MCAO”) and Brian Mackiewicz of the MCSO concealed information from the grand
jury, which resulted in an indictment of Mr. Weymouth. (Id. ¶ 47). Mr. Weymouth was
then arrested “in front of his home and neighbors.” (Id. ¶ 56). The Weymouths assert that
O’Connor sent Mr. Weymouth’s “mug shot to any and all known . . . business contacts,
friends and others” in order to humiliate him. (Id. ¶ 56, 49). Over the course of the next
few days, the Weymouths allege that O’Connor used the powers of his position with the
MSCO to further humiliate Mr. Weymouth during the booking process. (Id. ¶¶ 59-62.)
O’Connor, MCSO, MCAO, McKessy, and Mackiewicz are not among the defendants to
this action.
The Weymouths filed their complaint in Arizona Superior Court on February 6,
2012, asserting 19 claims for relief against the Defendants. (Doc. 1, Exs. 2-3.)
Defendants removed the case to this Court on May 9, 2012 because of the Weymouths’
§ 1983 claims. (Doc. 1.) The Defendants filed their Motion to Dismiss (Doc. 3) on May
21, 2012.
DISCUSSION
Defendants assert two grounds to support their Motion to Dismiss: (1) that the
Weymouths’ Complaint alleges no set of specific facts against the State or the individual
State employees named as defendants, and (2) that the Weymouths failed to comply with

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Arizona’s Notice of Claim statute, Arizona Revised Statutes (“A.R.S”) § 12-821.01.1

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To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a
“formulaic recitation of the elements of a cause of action”; it must contain factual
allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a complaint need not contain
detailed factual allegations . . . 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 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a
sheer possibility that a defendant has acted unlawfully.” Id. When a complaint does not
“permit the court to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to relief.” Id. at 679 (internal
quotation omitted).

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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 nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However,
legal conclusions couched as factual allegations are not given a presumption of
truthfulness, and “conclusory allegations of law and unwarranted inferences are not
sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.
1998).
A review of the Complaint shows that it does not assert that the named Defendants
engaged in any of the wrongdoing alleged. With the exception of the few non-substantive

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Defendants have conceded that their statute of limitations defense raises a factual
question not appropriate on a motion to dismiss. (Doc. 10 at 2.)
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paragraphs that address the identity of the parties (Doc. 1, Ex. 3 ¶¶ 3-15), the Complaint
details a lengthy list of abuses apparently committed not by the Defendants, but by
O’Connor, MCSO, MCAO, McKessy, and Mackiewicz, none of whom are defendants in
this action. The state of Arizona, the Arizona Department of Liquor Licenses and
Control, its Director, Deputy Director, and Inspectors are not alleged to have participated
in any of the actions described in the Complaint. While in the portion of the Complaint
that contains the assertions supporting the various claims for relief the Weymouths do
allege that the “Defendants” committed these actions, the actions referenced are those
purportedly committed by the MCSO, MCAO and its officers. The state of Arizona and
Maricopa County are separate legal entities. See Ariz. Const. art. XII; A.R.S. Title 11.
Because the Weymouths have failed to allege any facts that support their claims for relief
against any of the Defendants to this action, they have failed to state a claim under Rule
12(b)(6).
The Weymouths have asked for opportunity to amend their complaint to cure any
deficiency. (Doc. 9 at 3.) Defendants object with regard to the state law claims because of
the Weymouths’ failure to comply with the Arizona Notice of Claim statute. Defendants
insist that providing the Weymouths with an opportunity to amend their complaint to
restate the state law claims would be futile and would “frustrate the purpose of the Notice
of Claim law.” (Doc. 10 at 3.) Consideration of the Notice of Claim issue entails making
factual determinations from matter outside the pleadings that would convert the instant
12(b)(6) motion into a motion for summary judgment. Fed. R. Civ. P. 12(d). “‘When the
district court transforms a dismissal into a summary judgment proceeding, it must inform
a plaintiff who is proceeding pro se that it is considering more than the pleadings and
must afford a reasonable opportunity to present all pertinent material.’” Anderson v.
Angelone, 86 F.3d 932, 934-35 (9th Cir. 1996) (quoting Lucas v. Dep’t of Corrections, 66
F.3d 245, 248 (9th Cir. 1995)). Here, the Weymouths are proceeding pro se and the
Defendants have prevailed on their motion to dismiss all claims. In light of the successful

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motion and Ninth Circuit’s instruction not to convert the motion to dismiss into a
summary judgment against a pro se litigant, the Court declines to address the Notice of
Claims issue at this stage.
When this case was transferred to this Court, it issued an order directing the
parties to meet and confer prior to filing any motion to dismiss to determine whether any
defect could be cured by amendment. (Doc. 8.) Because the instant motion was filed
before the transfer and subsequent order, the Court will proceed to grant the Defendants’
motion while providing the Weymouths with an opportunity to amend their complaint.
Insofar as amendment is concerned, the Weymouths are directed to Rule 8 of the
Federal Rules of Civil Procedure. Rule 8(a) provides, in pertinent part:

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A pleading which sets forth a claim for relief ... shall contain (1) a short and plain
statement of the grounds upon which the court’s jurisdiction depends, . . . (2) a short and
plain statement of the claim showing that the pleader is entitled to relief, and (3) a
demand for judgment for the relief the pleader seeks.
Fed. R. Civ. P. 8(a). Rule 8(e) provides that “[e]ach averment of a pleading shall be
simple, concise, and direct.” Fed. R. Civ. P. 8(e)(1).
The Weymouths are advised that they must become familiar with, and follow, the
Federal Rules of Civil Procedure and the Rules of the United States District Court for the
District of Arizona (“Local Rules”), which may be obtained in the Clerk of Court’s
office. In preparing an amended complaint, the Weymouths should consult Federal Rule
of Civil Procedure 84 and the “Appendix of Forms” referenced therein because such
forms “are sufficient under the rules and are intended to indicate the simplicity and
brevity of statement which the rules contemplate.”
If the Weymouths fail to prosecute this action or comply with the rules or any
Court order, the Court may dismiss the action with prejudice pursuant to Federal Rule of
Civil Procedure 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992)
(holding that the district court did not abuse its discretion in dismissing a pro se
plaintiff’s complaint for failing to comply with a court order).
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IT IS HEREBY ORDERED that the Motion to Dismiss filed by the Defendants
(Doc. 3) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs shall have thirty (30) days from the
date of this Order in which to file a First Amended Complaint. Should Plaintiffs fail to
file a First Amended Complaint within that time, the Clerk of Court is directed to
terminate this matter.
Dated this 21st day of September, 2012.

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