Brown et al v. Chandler, City of et al

Filing 15

ORDER that Defendant City of Chandler, Defendants Click, and Defendants Pilkington's Motion to Dismiss Counts Two through Six (Doc. 4 ) is granted. IT IS FURTHER ORDERED that Defendants City of Phoenix and the Phoenix Police Department's Motion to Dismiss (Doc. 6 ) is granted. The City of Phoenix is dismissed without prejudice the Phoenix Police Department is dismissed with prejudice. Signed by Senior Judge James A Teilborg on 6/24/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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LESLIE NICOLE BROWN, a single
woman, and BOBBIE WALKER, a
single woman,
Plaintiffs,

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No. CV 12-02632-PHX-JAT
ORDER

vs.
CITY OF CHANDLER and CITY OF
CHANDLER POLICE
DEPARTMENT; CITY OF PHOENIX
and CITY OF PHOENIX POLICE
DEPARTMENT; TIM CLICK AND
JANE DOE CLICK, husband and wife;
DAVID PILKINGTON AND JANE
DOE PILKINGTON, husband and wife;
JOHN AND JANE DOES I-X AND
BLACK AND WHITE COMPANIES IX.
Defendants.

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Pending before the Court is Defendants City of Chandler, Click, and Pilkington’s

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(“the Chandler Defendants”) Motion to Dismiss Counts (Doc. 4) and Defendants City of

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Phoenix and Phoenix Police Department’s (collectively “Phoenix”) Motion to Dismiss

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parties (Doc. 6). Plaintiffs have filed a single Response to both motions to dismiss (Doc.

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10). Phoenix has filed a Reply (Doc. 11).

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I.

BACKGROUND
This case arises out of the events that occurred in the early morning hours of July

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27, 2010.

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neighborhood close to Plaintiff Brown’s residence. Defendants Click and Pilkington are

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members of the Glendale Police department and were involved in an undercover police

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operation with the Chandler and Phoenix Police departments that erupted in gunfire and

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police officers began pursuing suspects fleeing the scene. (Doc. 1-1 at 3). Plaintiff

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Brown was pulled over and detained by Defendants Click and Pilkington on suspicion of

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being involved. Plaintiff Brown was eventually released and Plaintiff Walker’s car was

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Plaintiff Brown was driving Plaintiff Walker’s car in a residential

impounded and returned to Plaintiffs the next day.

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On July 29, 2012, Plaintiffs filed the pending suit in State Superior Court making

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ten claims against Defendants, which included: (1) Count One against Defendant City of

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Phoenix for negligence; (2) Count Two against all other Defendants for negligence; (3)

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Count Three for negligent infliction of emotional distress; (4) Count Four for intentional

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infliction of emotional distress; (5) Count Five for false arrest and imprisonment; (6)

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Count Six for assault; (7) Count Seven for general allegations of civil rights violations

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under 42 U.S.C. § 1983; (8) Count Eight for failure to train and implement appropriate

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policies, customs, and practices under 42 U.S.C. § 1983; (9) Count Nine for use of

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excessive force under 42 U.S.C. § 1983; and (10) Count Ten for false arrest under 42

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U.S.C. § 1983. (Doc. 1-1 at 2-14). The Defendants subsequently removed this case to

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the Federal District Court on December, 11, 2012. (Doc. 1).

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On the same day, the Chandler Defendants filed their pending motion to dismiss.

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(Doc. 4). On December 14, 2012, Phoenix filed its pending motion to dismiss. (Doc. 6).

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Plaintiffs filed one Response to both motions to dismiss. (Doc. 10). Only Phoenix filed

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a Reply. (Doc. 11 at 2).

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II.

ANALYSIS

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A.

Chandler Defendants Motion to Dismiss (Doc. 4)

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The Chandler Defendants have filed a motion to dismiss Counts Two through Six
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for failure to state a claim. (Doc. 4). Plaintiffs have explicitly stated that “they do not

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currently oppose the Motions [to dismiss] filed by each of the Defendants.” (Doc. 10 at

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1). Plaintiffs’ only request is that any dismissal of any claims or parties be without

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prejudice.

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Plaintiffs’ request. Accordingly, the Court grants the Chandler Defendants’ motion to

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dismiss Counts Two through Six. This leaves Counts Seven through Ten still pending in

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this case against the Chandler Defendants.

(Id.).

The Chandler Defendants have not filed a Reply in response to

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B.

Phoenix’s Motion to Dismiss (Doc. 6)

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Phoenix has filed a motion to dismiss all claims against the City of Phoenix and

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the Phoenix Police Department. (Doc. 6). As with the Chandler Defendants’ motion to

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dismiss, Plaintiffs do not oppose Phoenix’s motion either. (Doc. 10 at 1). However,

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Plaintiffs’ request, that any dismissal of claims or parties be without prejudice, is

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opposed by Phoenix in its Reply. Phoenix does not oppose dismissal without prejudice

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against the City of Phoenix. (Doc. 11 at 2). However, Phoenix requests that dismissal of

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the Phoenix Police Department be with prejudice because the Police Department is a

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non-jural entity not subject to suit in any form. (Id.).

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The Court has held before that the Phoenix Police Department is a subpart of the

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City of Phoenix and not a separate entity for purposes of suit. Gotbaum v. City of Phx.,

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617 F. Supp. 2d 878, 886 (D. Ariz. 2008).

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Department will be dismissed from this case with prejudice.

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Consequently, the Phoenix Police

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III.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Defendant City of Chandler, Defendants Click, and

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Defendants Pilkington’s Motion to Dismiss Counts Two through Six (Doc. 4) is granted.

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IT IS FURTHER ORDERED that Defendants City of Phoenix and the Phoenix

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Police Department’s Motion to Dismiss (Doc. 6) is granted. The City of Phoenix is

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dismissed without prejudice the Phoenix Police Department is dismissed with prejudice.

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Dated this 24th day of June, 2013.

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