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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tanya Busse,

No. CV-13-01158-PHX-DGC
Plaintiff,

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v.

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ORDER

City of Mesa, et al.,

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Defendants.

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Defendant City of Mesa has filed a motion to dismiss. Doc. 37. Defendants Rick

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Romero, Superior Process Service, Inc. and Kevin Jensen have joined the motion.

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Docs. 38, 39. Plaintiff has not responded despite prompts by the court to do so, but has

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filed a motion for summary judgment. Doc. 41. The Court will grant Defendants’

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motion to dismiss.

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I.

Background.

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Plaintiff seeks damages under 42 U.S.C. § 1983 for an allegedly improper arrest

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and detention. Doc. 1. Plaintiff was arrested at her place of work on April 19, 2013 for

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violating an order of protection. The order prohibited her from any contact with her

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husband, but Plaintiff had texted her husband up to six times in March and April 2013.

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Doc. 37-2 at 3. Upon arrest, Plaintiff claimed that she had never been served with the

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order of protection. Doc. 1 at 3-4. Plaintiff was held overnight, during which time she

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claims to have had small seizures, to have been hit in the head by another woman, and to

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have suffered extreme cold temperatures, which caused her extreme pain. Id. at 4.

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In June of 2013, Plaintiff was charged with four counts of interfering with judicial

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proceedings – domestic violence, for violating the order of protection. Doc. 37-3. On

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January 13, 2014, Plaintiff was convicted in Mesa Municipal Court on three of the four

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counts. Doc. 37-4.

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II.

Analysis.

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Under Heck v. Humphrey, 512 U.S. 477 (1994), “in order to recover damages for

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allegedly unconstitutional conviction or imprisonment, or for other harm caused by

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actions whose unlawfulness would render a conviction or sentence invalid, a § 1983

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plaintiff must prove that the conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make such

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determination, or called into question by a federal court’s issuance of a writ of habeas

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corpus, 28 U.S.C. § 2254.” Id. at 486-87. “A claim for damages bearing that relationship

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to a conviction or sentence that has not been so invalidated is not cognizable under

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§ 1983.” Id.

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Plaintiff claims that her arrest was invalid and unconstitutional because (1) she

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“was arrested without committing a crime and without a warrant,” (2) the arresting

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officers “did not follow proper procedure to secure plaintiffs rights and they knew or

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should have known that the arrest was not lawful,” (3) she was embarrassed in front of

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coworkers; (4) her husband and an individual named Chelsea Holgate alleged false,

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defamatory information that led to her arrest; and (5) the City of Mesa failed to properly

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train its employees. Doc. 1 at 5.

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The Court “must consider whether a judgment in favor of the plaintiff would

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necessarily imply the invalidity of his conviction or sentence; if it would, the complaint

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must be dismissed.” Heck, 512 U.S. at 487. Most of Plaintiff’s allegations concern the

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charges brought by the City of Mesa and her arrest on those charges. Because these

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allegations imply the invalidity of the charges and her conviction, they must be dismissed

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under Heck. Plaintiff has not shown that her conviction on the charges has been reversed,

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overturned, or otherwise called into question by court action.

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Further, a § 1983 claim cannot be used to assert claims against her husband and

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Chelsea Holgate for making false and defamatory statements. These individuals were not

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acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (defendant must

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be acting under color of state authority to be subject to a § 1983 claim).

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Finally, Plaintiff’s claim that the City of Mesa failed to train its employees

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properly may or may not be subject to a Heck defense. To the extent Plaintiff suggests

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that her arrest and conviction were the result of inadequate training, the claims clearly are

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barred by Heck. To the extent Plaintiff bases her claim of inadequate training on other

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facts, she has failed to identify those facts or clearly describe the claim she is asserting.

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As noted above, Plaintiff did not respond to the motions to dismiss despite the

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Court’s direct warning that a failure to respond would result in the motions being granted.

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Doc. 40. Plaintiff did file a motion for summary judgment, but it does not provide

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reasons for denying the motions to dismiss. Plaintiff’s motion for summary judgment

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argues that the City of Mesa violated her constitutional rights in connection with her

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conviction, including denying her right to indictment and a jury trial. Plaintiff also

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describes new constitutional violations resulting from the conviction, and argues various

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facts relating to actions by her husband and the circumstances of her arrest. The Court

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cannot find in the motion any basis for concluding that Plaintiff has stated a valid claim.

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Because this case has been pending for more than nine months, with Plaintiff having

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failed to respond to eight motions by Defendants, the Court concludes that the motions to

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dismiss should be granted and this case should be terminated.

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mentions in her motion for summary judgment that she will seek leave to amend, the new

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claims she describes (to the extent they can be understood by the Court) would also be

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barred by Heck. Plaintiff has had two opportunities to plead her claims, and the Court

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concludes that further amendments will only unnecessarily prolong this litigation.

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Although Plaintiff

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IT IS ORDERED that the motions to dismiss (Docs. 37, 38, 39) are granted.

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Defendants’ earlier motions (Docs. 4, 5, 7, 8, 9) and Plaintiff’s motion for summary

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judgment (Doc. 41) are denied as moot. The Clerk shall terminate this action.

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Dated this 31st day of March, 2014.

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