Busse v. Mesa, City of et al

Filing 42

ORDER granting 37 , 38 , 39 Motions to Dismiss and denying 4 , 5 , 7 , 8 , 9 Defendants' earlier Motions to Dismiss and denying as moot 41 Plaintiff's Motion for Summary Judgment. The Clerk shall terminate this action. Signed by Judge David G Campbell on 3/31/14.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tanya Busse, No. CV-13-01158-PHX-DGC Plaintiff, 10 11 v. 12 ORDER City of Mesa, et al., 13 Defendants. 14 15 Defendant City of Mesa has filed a motion to dismiss. Doc. 37. Defendants Rick 16 Romero, Superior Process Service, Inc. and Kevin Jensen have joined the motion. 17 Docs. 38, 39. Plaintiff has not responded despite prompts by the court to do so, but has 18 filed a motion for summary judgment. Doc. 41. The Court will grant Defendants’ 19 motion to dismiss. 20 I. Background. 21 Plaintiff seeks damages under 42 U.S.C. § 1983 for an allegedly improper arrest 22 and detention. Doc. 1. Plaintiff was arrested at her place of work on April 19, 2013 for 23 violating an order of protection. The order prohibited her from any contact with her 24 husband, but Plaintiff had texted her husband up to six times in March and April 2013. 25 Doc. 37-2 at 3. Upon arrest, Plaintiff claimed that she had never been served with the 26 order of protection. Doc. 1 at 3-4. Plaintiff was held overnight, during which time she 27 claims to have had small seizures, to have been hit in the head by another woman, and to 28 have suffered extreme cold temperatures, which caused her extreme pain. Id. at 4. 1 In June of 2013, Plaintiff was charged with four counts of interfering with judicial 2 proceedings – domestic violence, for violating the order of protection. Doc. 37-3. On 3 January 13, 2014, Plaintiff was convicted in Mesa Municipal Court on three of the four 4 counts. Doc. 37-4. 5 II. Analysis. 6 Under Heck v. Humphrey, 512 U.S. 477 (1994), “in order to recover damages for 7 allegedly unconstitutional conviction or imprisonment, or for other harm caused by 8 actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 9 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, 10 expunged by executive order, declared invalid by a state tribunal authorized to make such 11 determination, or called into question by a federal court’s issuance of a writ of habeas 12 corpus, 28 U.S.C. § 2254.” Id. at 486-87. “A claim for damages bearing that relationship 13 to a conviction or sentence that has not been so invalidated is not cognizable under 14 § 1983.” Id. 15 Plaintiff claims that her arrest was invalid and unconstitutional because (1) she 16 “was arrested without committing a crime and without a warrant,” (2) the arresting 17 officers “did not follow proper procedure to secure plaintiffs rights and they knew or 18 should have known that the arrest was not lawful,” (3) she was embarrassed in front of 19 coworkers; (4) her husband and an individual named Chelsea Holgate alleged false, 20 defamatory information that led to her arrest; and (5) the City of Mesa failed to properly 21 train its employees. Doc. 1 at 5. 22 The Court “must consider whether a judgment in favor of the plaintiff would 23 necessarily imply the invalidity of his conviction or sentence; if it would, the complaint 24 must be dismissed.” Heck, 512 U.S. at 487. Most of Plaintiff’s allegations concern the 25 charges brought by the City of Mesa and her arrest on those charges. Because these 26 allegations imply the invalidity of the charges and her conviction, they must be dismissed 27 under Heck. Plaintiff has not shown that her conviction on the charges has been reversed, 28 overturned, or otherwise called into question by court action. -2- 1 Further, a § 1983 claim cannot be used to assert claims against her husband and 2 Chelsea Holgate for making false and defamatory statements. These individuals were not 3 acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (defendant must 4 be acting under color of state authority to be subject to a § 1983 claim). 5 Finally, Plaintiff’s claim that the City of Mesa failed to train its employees 6 properly may or may not be subject to a Heck defense. To the extent Plaintiff suggests 7 that her arrest and conviction were the result of inadequate training, the claims clearly are 8 barred by Heck. To the extent Plaintiff bases her claim of inadequate training on other 9 facts, she has failed to identify those facts or clearly describe the claim she is asserting. 10 As noted above, Plaintiff did not respond to the motions to dismiss despite the 11 Court’s direct warning that a failure to respond would result in the motions being granted. 12 Doc. 40. Plaintiff did file a motion for summary judgment, but it does not provide 13 reasons for denying the motions to dismiss. Plaintiff’s motion for summary judgment 14 argues that the City of Mesa violated her constitutional rights in connection with her 15 conviction, including denying her right to indictment and a jury trial. Plaintiff also 16 describes new constitutional violations resulting from the conviction, and argues various 17 facts relating to actions by her husband and the circumstances of her arrest. The Court 18 cannot find in the motion any basis for concluding that Plaintiff has stated a valid claim. 19 Because this case has been pending for more than nine months, with Plaintiff having 20 failed to respond to eight motions by Defendants, the Court concludes that the motions to 21 dismiss should be granted and this case should be terminated. 22 mentions in her motion for summary judgment that she will seek leave to amend, the new 23 claims she describes (to the extent they can be understood by the Court) would also be 24 barred by Heck. Plaintiff has had two opportunities to plead her claims, and the Court 25 concludes that further amendments will only unnecessarily prolong this litigation. 26 27 28 -3- Although Plaintiff 1 IT IS ORDERED that the motions to dismiss (Docs. 37, 38, 39) are granted. 2 Defendants’ earlier motions (Docs. 4, 5, 7, 8, 9) and Plaintiff’s motion for summary 3 judgment (Doc. 41) are denied as moot. The Clerk shall terminate this action. 4 Dated this 31st day of March, 2014. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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