Clifton v. Arredondo et al

Filing 10

ORDER that Defendant's motion to dismiss (Doc. 3 ) is denied. Signed by Judge David G Campbell on 1/23/2014.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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George W. Clifton,
Plaintiff,

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No. CV-13-02162-PHX-DGC
ORDER

v.
David Arredondo,
Defendant.

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Defendant David Arredondo has filed a motion to dismiss Plaintiff George

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Clifton’s complaint. Doc. 3. The motion is fully briefed and no party has requested oral

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argument. For the reasons that follow, the Court will deny the motion.

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I.

Background.

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Plaintiff’s complaint arises out of an incident that allegedly occurred on May 27,

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2012. Doc. 5 at 3. Plaintiff alleges that he “was driving his vehicle westbound on

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Madison Street – between 12th and 13th avenues,” when “he noticed a Phoenix Police

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vehicle (#111361),” which he alleges was illegally parked against the flow of traffic.

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Doc. 1-3 at 3. Plaintiff claims that he stopped his vehicle alongside the police vehicle

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and Defendant approached his passenger window. Id. Plaintiff then asserts that he

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“politely and calmly asked him if his police car needed to be parked with the flow of

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traffic,” and that the Defendant “pretended” not to hear or understand Plaintiff. Id.

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Plaintiff alleges that Defendant became angry and began to yell at him after he said “Oh,

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I see, are you corrupt and above the law?” Id.

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After this exchange, Plaintiff claims he parked his car in a nearby parking lot and

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returned “to the scene in order to protest both [Defendant’s] very unprofessional behavior

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and the parking matter.” Id.

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Defendant “flew out of the police vehicle and ran right up to [his] face,” “yelled and

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cussed at [him] and told [him] that [he] was on private property” and that he had to leave.

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Id. Plaintiff states that he then walked from the north side of the street to the south side

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and that Defendant “continued his actions.” Id. The parties allegedly engaged in a

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continued shouting match during which Plaintiff claims that Defendant was “constantly

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bumping his body into mine, and kicking me all over my shod feet.” Id. Plaintiff further

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alleges that he attempted to call 911, but that Defendant continued yelling so loudly that

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he was unable to hear the operator. Id. at 4. Plaintiff finally alleges that Defendant

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“shone his police vehicle’s spotlight” right in his face as he waited for a response to his

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911 call and as he ultimately walked away. Id. Plaintiff claims that he returned to the

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area the following day to protest and was permitted to protest without interruption. Id.

He alleges that as he was “verbally protesting,” the

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Plaintiff filed a complaint in Justice Court, alleging that Defendant’s actions

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deprived him of his rights under the First Amendment and asserting that Defendant

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“thereby violat[ed] 42 U.S.C. Section 1983,” making Defendant “liable to [Plaintiff] ‘in

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an action at law . . . for redress.’” Id.

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II.

Legal Standard.

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When analyzing a complaint for failure to state a claim to relief under Rule

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12(b)(6), the well-pled factual allegations are taken as true and construed in the light

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most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th

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Cir. 2009). Legal conclusions couched as factual allegations are not entitled to the

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assumption of truth,” Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are

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insufficient to defeat a motion to dismiss for failure to state a claim, In re Cutera Sec.

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Litig., 610 F.3d 1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the

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complaint must plead “enough facts to state a claim to relief that is plausible on its face.”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This plausibility standard “is not

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akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a

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defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

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556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the

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pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

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III.

Analysis.

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A.

Lack of Personal Jurisdiction.

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Defendant argues that he was not timely served by Plaintiff and that the Court

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therefore does not have personal jurisdiction over him. Doc. 3 at 3. He cites Rule 113(i)

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of the Justice Court Rules of Civil Procedure, which states that “[a]fter at least twenty

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(20) days notice to plaintiff, the court may dismiss a complaint as to any defendant who

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has not been served with the summons and complaint within [120] days after the filing of

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the complaint.” Id. (emphasis added). Defendant contends that the 120-day window for

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service expired on September 25, 2013, and that Defendant was not served until

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October 3, 2013. Id. Defendant argues that he has not waived any challenge to personal

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jurisdiction by removing the action this court. Id. He further argues that Arizona law

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requires proper, effective service as a prerequisite to a court’s exercise of personal

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jurisdiction. Id. (citing Barlage v. Valentine, 110 P.3d 371, 373 (Ariz. Ct. App. 2005)).

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The fact that Defendant was served outside of the 120-day window discussed in

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the Justice Court rules does not alone render service ineffective. Defendant admits that

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he was properly served on October 3, 2013, does not allege any other defects in the

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service, and does not identify any prejudice suffered as a result of the late service.

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Accordingly, the Court will deny Defendant’s motion to dismiss on this ground.

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B.

1983 Claims.

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Defendant argues that Plaintiff has failed to state a claim under § 1983 because he

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cannot establish injury from the alleged constitutional violation. Doc. 3 at 4. “To state a

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claim for relief in an action brought under § 1983, [plaintiffs] must [allege] that they were

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deprived of a right secured by the Constitution or laws of the United States, and that the

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alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v.

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Sullivan, 526 U.S. 40, 49-50 (1999). “Section 1983 ‘is not itself a source of substantive

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rights,’ but merely provides ‘a method for vindicating federal rights elsewhere

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conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan,

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443 U.S. 137, 144, n.3 (1979)).

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To prevail on his First Amendment claim, Plaintiff must provide evidence

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showing that Defendant “deterred or chilled [his] political speech” and that “such

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deterrence was a substantial or motivating factor in [Defendant’s] conduct.” Menotti v.

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City of Seattle, 409 F.3d 1113, 1155 (9th Cir. 2005) (quoting Sloman v. Tadlock, 21 F.3d

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1462, 1469 (9th Cir. 1994)) (internal quotation marks omitted). Defendant contends that

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Plaintiff’s complaint “fails to demonstrate that he was deterred from making political

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speech or that such deterrence was the substantial or motivating factor in [Defendant]’s

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conduct.” Doc. 3 at 5. The Court does not agree.

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If the Court accepts as true Plaintiff’s factual allegations about Defendant’s

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conduct, as it must at the motion to dismiss stage, Plaintiff has stated a claim under the

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First Amendment. He has pleaded facts alleging that he stopped his protest on a public

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sidewalk in response to Defendant’s conduct. He has also pleaded facts alleging that the

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Defendant repeatedly and aggressively told him to leave the area because he was on

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private property. The facts alleged in the complaint do not suggest any reason for

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Defendant’s conduct toward Plaintiff other than the fact that Plaintiff was protesting

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Defendant’s actions. This could constitute evidence that deterring Plaintiff’s protest was

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a substantial or motivating factor in Defendant’s conduct. Further, that Plaintiff went

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back to the same area to protest the following day does not suggest that Plaintiff’s right to

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protest was not impacted by Defendant’s conduct on the day in question. The Court will

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deny Defendant’s motion to dismiss on this ground.

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C.

Qualified Immunity.

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Defendant argues that he is entitled to qualified immunity even if Plaintiff has

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stated a claim. Doc. 3 at 6. To rule on this argument, the Court first must ask whether

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Plaintiff has made a prima facie showing that the state actor violated Plaintiff’s

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constitutional rights. Orin v. Barclay, 272 F.3d 1207, 1214 (9th Cir. 2001); Saucier v.

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Katz, 533 U.S. 194, 201 (2001). If the facts alleged show a constitutional violation, the

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Court must determine whether the law was clearly established. Saucier, 533 U.S. at 201.

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Finally, if the law was clearly established, yet based on the circumstances, the state actor

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made a mistake regarding what the law required, the officer will be entitled to immunity

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if the mistake was reasonable. Id. at 205.

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Defendant argues that there was no constitutional violation. Whether a violation

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occurred has not been determined, but Plaintiff has pled a First Amendment claim, as

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discussed above.

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Defendant argues that “Plaintiff cannot establish that he had a clearly established

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right to block traffic while chastising a police officer’s parking job, nor can he establish

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that he had a clearly established right to harangue [Defendant] on the sidewalk.” Doc. 3

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at 7-8. Plaintiff does not claim that he had a right to block traffic. Rather, he claims that

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he had a constitutional right to protest on a public sidewalk. It is clearly established that

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“[p]ublic streets and sidewalks are the archetype of a traditional public forum,” and that

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“[r]egulation of speech in a traditional public forum is subject to the highest scrutiny.”

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Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (internal citations and

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quotation marks omitted). Defendant does not argue that he made any mistake regarding

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the state of the law. Accordingly, the Court will not grant Defendant’s motion to dismiss

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on this ground.

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D.

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Defendant’s motion also requests that the Court dismiss Plaintiff’s claims against

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the City of Phoenix. Doc. 3 at 8-9. Because the Court has already entered an order

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terminating the City of Phoenix (Doc. 8), the Court will deny this portion of Defendant’s

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motion as moot.

City of Phoenix.

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IT IS ORDERED that Defendant’s motion to dismiss (Doc. 3) is denied.

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Dated this 23rd day of January, 2014.

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