Kimbrough v. Buckeye, City of et al

Filing 20

ORDER granting Defendants' 11 Motion to Dismiss; the only claim remaining in this case is the § 1983 claim asserted against defendant Hannaman. Signed by Senior Judge Frederick J Martone on 8/21/13.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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City of Buckeye; Mark Mann; Jonathan)
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Hannaman,
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Defendants.
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No. CV-13-00131-PHX-FJM

Adam David Jesiah Kimbrough,

ORDER

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The court has before it defendants’ motion to dismiss (doc. 11), plaintiff’s response
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(doc. 17), and defendants’ reply (doc. 19).
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Plaintiff filed this action against the City of Buckeye, Police Chief Mark Mann and
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Police Officer Jonathan Hannaman, alleging violations of his Fourth and Fourteenth
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Amendment rights under 42 U.S.C. § 1983, as well as state law claims of false arrest and
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false imprisonment. Plaintiff’s claims arise out of his arrest for driving under the influence
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on January 20, 2012. He alleges that he was stopped by Officer Hannaman for driving
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without a headlight, and although there was no indication that he was impaired, plaintiff was
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placed under arrest, transported to the police station, and subjected to a blood test. He was
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later released and no charges were filed.
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Defendants now move to dismiss all state law claims on the ground that plaintiff failed

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to comply with Arizona’s notice of claim statute, A.R.S. § 12-821.01. They also move to

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dismiss all federal claims against the City of Buckeye and Police Chief Mann for failure to

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state a claim.

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II. Notice of Claims

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Under A.R.S. § 12-821.01, a plaintiff with a claim against a public entity or employee

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must first file a notice of claim with the entity or person within 180 days after the cause of

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action accrues. Compliance with the notice provision is a “mandatory and essential

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prerequisite,” Martineau v. Maricopa County, 207 Ariz. 332, 334, 86 P.3d 912, 914 (Ct. App.

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2004), and a plaintiff’s failure to comply bars any claim, Falcon ex rel. Sandoval v. Maricopa

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County, 213 Ariz. 525, 527, 144 P.3d 1254, 1256 (2006). A claim against a public entity or

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employee accrues “when the damaged party realizes he or she has been damaged and knows

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or reasonably should know the cause, source, act, event, instrumentality or condition which

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caused or contributed to the damage.” A.R.S. § 12-821.01(B); Zuck v. State, 159 Ariz. 37,

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40-41, 764 P.2d 772, 775-76 (Ct. App. 1988).

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Plaintiff was arrested for driving under the influence on January 20, 2012, and was

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taken into custody. He speculates that he was not released from custody until the early

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morning hours of January 21, 2013, and that his release from custody triggers the accrual of

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his false arrest and false imprisonment claims. We disagree.

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False arrest and unlawful imprisonment claims arise from the detention of a person

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without his consent and without lawful authority. Slade v. City of Phoenix, 112 Ariz. 298,

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300, 541 P.2d 550, 552 (1975) (“The essential element necessary to constitute either false

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arrest or false imprisonment is unlawful detention.”). At the time of his arrest, plaintiff knew

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that his arrest and imprisonment were not supported by lawful authority. He knew that he

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had been injured and knew the cause of the injury. Therefore, his claims for false arrest and

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false imprisonment accrued on January 20, 2012, the date of his arrest. See Hansen v. Stoll,

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130 Ariz. 454, 460, 636 P.2d 1236, 1242 (Ct. App. 1981).

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Under A.R.S. § 12-821.01, plaintiff had 180 days–until July 18, 2012–to serve his
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notice of claim. His notice was served on the City of Buckeye and defendant Hannaman on

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July 19, 2012–181 days after his cause of action accrued. Strict compliance with A.R.S. §

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12-821.01 is required. Substantial compliance is not sufficient. Falcon, 213 Ariz. at 527,

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144 P.3d at 1256. Because plaintiff did not serve his notice of claim within 180 days after

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his causes of action accrued, his state law claims against the City of Buckeye and Hannaman

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are statutorily time-barred.

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Plaintiff acknowledges that defendant Mann was not served with a notice of claim at

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all. Response at 3. Plaintiff was required to serve each defendant individually. His failure

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to serve Mann with a notice of claim bars any state law claim asserted against Mann.

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Defendants’ motion to dismiss all state law claims against all defendants is granted.
III. Section 1983 Claims

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Defendants also move to dismiss the claims asserted against the City of Buckeye and

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Police Chief Mann pursuant to 42 U.S.C. § 1983 for failure to state a claim. See Fed. R. Civ.

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P. 12(b)(6). To maintain a § 1983 claim against the City of Buckeye and Mann in his official

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capacity, plaintiff must allege that a “policy or custom” attributable to the City or Mann was

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the “moving force” behind the constitutional deprivation. Monell v. Dept. of Soc. Servs.,

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436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978). Plaintiff does not respond to this claim

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other than to “submit[] this issue upon the pleadings in this case.” Response at 3. This is

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insufficient to oppose a motion to dismiss. A party’s failure to respond to a motion to

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dismiss is itself reason to grant the motion summarily. See LRCiv 7.2(i).

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Plaintiff has not alleged any facts in his complaint to establish that a custom or policy

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was the moving force behind the deprivation of his constitutional rights. Accordingly, the

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§ 1983 claims against the City of Buckeye and defendant Mann in his official capacity are

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dismissed for failure to state a claim.

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Similarly, plaintiff does not allege any facts to support Mann’s liability in his

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individual capacity. In order to support a § 1983 claim against a defendant in his individual

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capacity, a plaintiff must allege facts to show that the defendant’s individual actions caused

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the constitutional violation. Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 1948
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(2009). Government officials may not be held liable for the unconstitutional conduct of their

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subordinates under a theory of respondeat superior. Id. Plaintiff’s complaint is devoid of any

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allegation that defendant Mann’s own individual actions violated his constitutional rights.

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Therefore, plaintiff’s § 1983 claims against the City of Buckeye and Mann are

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dismissed for failure to state a claim.
IV
IT IS ORDERED GRANTING defendants’ motion to dismiss (doc. 11). The only
claim remaining in this case is the § 1983 claim asserted against defendant Hannaman.
DATED this 21st day of August, 2013.

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