Micolo v. Pinal, County of et al

Filing 56

ORDER - Defendants' motion to dismiss (Doc. 48 ) is granted. Plaintiff may file an amended complaint by March 11, 2016. Clerk is directed to terminate this matter without further order of the Court if Plaintiff fails to file an amended complaint. See document for details. Signed by Judge David G Campbell on 2/16/16. (EJA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Michael Carmine Micolo,
Plaintiff,

10
11

ORDER

v.

12

No. CV-14-02649-PHX-DGC

County of Pinal, et al.,

13

Defendants.

14
15

On December 31, 2014, Plaintiff Michael Carmine Micolo filed an amended

16

complaint asserting that Defendants used excessive force in his May 17, 2014 arrest, in

17

violation of the Fourth and Fourteenth Amendments. Doc. 10. On March 13, 2015, the

18

Court dismissed all claims against the Pinal County Sherriff’s Department, and all of

19

Plaintiff’s state law claims. Doc. 24. Defendants have filed a motion to dismiss the

20

remaining claims. Doc. 48. The motion has been fully briefed (Docs. 49, 53) and no

21

party has requested oral argument. For the reasons set forth below, the Court will grant

22

the motion. Plaintiff will be granted leave to amend to assert any claims he may have

23

based on Defendants’ conduct after the arrest.1

24

I.

25

Background.
Plaintiff was arrested on May 17, 2014, on charges of criminal trespass,

26
1

27
28

Plaintiff attempted to file an amended response on January 27, 2016. Doc. 52.
An amendment of this type is not authorized by the Federal Rules of Civil Procedure or
the Local Rules of Practice, and Plaintiff did not obtain leave of court to file such an
amendment. In addition, the amendment was untimely. See Doc. 47 (requiring Plaintiff
to file his response by January 15, 2016).

1

aggravated assault of a police officer, and resisting arrest. Doc. 10, ¶ 10. Plaintiff alleges

2

that he was suffering from delirium and acute renal failure at the time of the arrest, and

3

that the arresting officer, Sergeant Stacy Sherwood of the Pinal County Sherriff’s

4

Department, punched, pushed, and tased him during the arrest. Id., ¶¶ 13, 18. Plaintiff

5

alleges that he was placed in an ambulance after the arrest, where his hands were cuffed

6

and his ankles shackled. Id., ¶ 15. Plaintiff alleges that the officers subsequently

7

tightened his cuffs, causing him injury. Id.

8

On August 28, 2014, the Pinal County Attorney filed a criminal complaint

9

charging Plaintiff with criminal trespass, aggravated assault of a police officer, and

10

resisting arrest. Doc. 48-1 at 2.2 On November 6, 2015, Plaintiff pleaded guilty to one

11

count of resisting arrest. Id. at 18. On December 1, 2015, the Pinal County Superior

12

Court sentenced Plaintiff to two days in Pinal County Jail and eighteen months of

13

supervised probation. Id. at 23.

14

Plaintiff alleges that Sergeant Sherwood used excessive force during the arrest and

15

seeks damages under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth

16

Amendments. Doc. 10. Plaintiff also asserts a claim against Pinal County under Monell

17

v. Department of Social Services, 436 U.S. 658 (1978), alleging that Sherwood’s conduct

18

was undertaken pursuant to official policy.

19

resolution of the criminal case against Plaintiff. Docs. 1, 38. The Court lifted the stay on

20

December 16, 2015, approximately two weeks after Plaintiff’s sentencing (Doc. 47), and

21

Defendants moved dismiss (Doc. 48).

22

II.

The Court stayed the action pending

Legal Standard.

23

A successful 12(b)(6) motion must show either that the complaint lacks a

24

cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri

25
26
27
28

2

The Court takes judicial notice of the criminal complaint, plea order, and
sentencing order supplied by Defendants. See Fed. R. Evid. 201(b)(2); Lee v. City of
L.A., 250 F.3d 668, 689 (9th Cir. 2001) (court may take judicial notice of public records
on Rule 12(b)(6) motion).

-2-

1

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a

2

cognizable legal theory will survive a motion to dismiss as long as it contains “sufficient

3

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

4

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550

5

U.S. 544, 570 (2007)). A claim has facial plausibility when “the plaintiff pleads factual

6

content that allows the court to draw the reasonable inference that the defendant is liable

7

for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

8
9
10

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550
U.S. at 556).

11
12

In ruling on a Rule 12(b)(6) motion, the Court takes the plaintiff’s well-pleaded
factual allegations as true and construes them in the light most favorable to the plaintiff.

13
14
15
16

Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal conclusions couched as
factual allegations are not entitled to a presumption of truth and are not sufficient to
defeat a 12(b)(6) motion. Iqbal, 556 U.S. at 678.
Pro se litigants are subject to the same pleading requirements as everyone else.

17
18

Calugay v. GMAC Mortgage, No. CV-09-1947-PHX-LOA, 2009 WL 3872356, at *2 (D.

19

Ariz. Nov. 18, 2009) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986). But

20

courts have an obligation “to construe [pro se] pleadings liberally and to afford the

21

petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)

22

(citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc)). If a pro se

23

complaint does not state a claim upon which relief can be granted, the court must grant

24

leave to amend “unless it determines that the pleading could not possibly be cured by the

25

allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

26

III.

Analysis.

27

A.

28

Plaintiff’s principal claim is that Defendants violated the Fourth and Fourteenth

Excessive Force During Arrest.

-3-

1

Amendments by using excessive force against him during his arrest. Doc. 10, ¶ 18. He

2

seeks damages for this alleged constitutional violation under 42 U.S.C. § 1983.

3

Defendants assert that this claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).

4

In Heck, the Supreme Court held that an individual who has been convicted of a

5

state-law crime cannot obtain relief under § 1983 that “would necessarily imply the

6

invalidity of his conviction” unless the conviction has been invalidated in a separate

7

proceeding. 512 U.S. at 487. The rationale for this rule is that federal law provides a

8

different avenue for challenging a state-law conviction: a habeas corpus action under 28

9

U.S.C. § 2254. Heck prevents an individual seeking to challenge his state-law conviction

10

from sidestepping the exhaustion and other procedural prerequisites set forth in § 2254.

11

Although Heck involved a malicious prosecution claim, the Court made clear that

12

its holding would also apply to certain excessive force claims. See 512 U.S. 477 at n.6.

13

Specifically, Heck prohibits an individual from bringing an excessive force claim if he

14

has been convicted of resisting lawful arrest in connection with the same incident. Id.

15

Heck applies in these cases because an excessive force claim, if proven, negates an

16

element of the offense of resisting lawful arrest – namely, the lawfulness of the arrest. Id.

17

Lower courts have provided additional guidance on when a conviction for

18

resisting arrest will bar an excessive force claim. In some states, an individual can be

19

convicted of resisting arrest even if the arrest was not lawful. In these states, a conviction

20

for resisting arrest is no bar to an excessive force claim. See Simpson v. City of Pickens,

21

887 F. Supp. 126 (S.D. Miss. 1995); Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir.

22

1997). In states where the lawfulness of the arrest is an element of the crime of resisting

23

arrest, a valid conviction will bar an excessive force claim. See Smith v. City of Hemet,

24

394 F.3d 689, 697 (9th Cir. 2005) (en banc).

25

Arizona is one of the latter states. “A defendant can only be convicted of resisting

26

arrest in Arizona if the officer’s conduct was ‘lawful’ when effecting the arrest; an

27

officer’s conduct was not ‘lawful’ if he used excessive force.” Mitchell v. Demski, No.

28

CV06-0969-PHX-MHM, 2007 WL 2023471, at *4 (D. Ariz. July 11, 2007); see

-4-

1

Dominguez v. Shaw, No. CV 10-01173-PHX-FJM, 2011 WL 4543901 (D. Ariz. Sept. 30,

2

2011); Hall v. City of Tempe, No. CIV. 12-2094-PHX-PGR, 2013 WL 4079199 (D. Ariz.

3

Aug. 13, 2013). Thus, an individual who has been convicted of resisting arrest in

4

Arizona cannot bring an excessive force claim arising out of that arrest unless his

5

conviction has been overturned or invalidated in a separate proceeding.

6

Plaintiff has been convicted of resisting arrest in Arizona. Doc. 48-1 at 18.

7

Plaintiff does not contend that this conviction has been overturned. Therefore, Plaintiff’s

8

excessive force claim fails as a matter of law. Heck, 512 U.S. 477.3

9

B.

Excessive Force After Arrest.

10

Plaintiff’s complaint could be construed as asserting a second excessive force

11

claim relating to the arresting officers’ conduct after the arrest. Under the heading

12

“statement of facts,” Plaintiff’s complaint states the following:

13

During transport to the hospital the Plaintiff was hand cuffed
and had ankle shackles place on him. In which both were tied
together. In Plaintiff’s statement he was told by a fellow
officer that was with Plaintiff in an ambulance that he needed
to be restrained again. Handcuffs were tighten. Which
caused injuries to the Plaintiff.

14
15
16
17

Doc. 10, ¶ 15 (quoted verbatim).

18

Plaintiff’s conviction for resisting arrest does not preclude an excessive force

19

claim based on post-arrest actions of the officers. See City of Hemet, 394 F.3d at 693.

20

But Plaintiff must still plead “sufficient factual matter, accepted as true, to ‘state a claim

21

to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S.

22

at 570). The amended complaint falls far short of that requirement. A successful

23

excessive force claim must show that the officers’ use of force was objectively

24

unreasonable in light of the facts and circumstances confronting them.

Graham v.

25
26
27
28

3

Plaintiff notes that his conviction is the result of a plea bargain, not a jury verdict
(Doc. 49 at 7), but that is a distinction without a difference. Plaintiff’s guilty plea
constitutes an admission to every element of the crime of resisting arrest, including the
lawfulness of the arrest. The admission is therefore sufficient to preclude Plaintiff’s
excessive force claim. See City of Hemet, 394 F.3d at 697 (criminal defendant’s entry of
guilty plea to crime of resisting arrest would bar a subsequent excessive force claim).
-5-

1

Connor, 490 U.S. 386, 397 (1989). “Whether a particular use of force was ‘objectively

2

reasonable’ depends on several factors, including the severity of the crime that prompted

3

the use of force, the threat posed by a suspect to the police or to others, and whether the

4

suspect was resisting arrest.” Tatum v. City & Cty. of S.F., 441 F.3d 1090, 1095 (9th Cir.

5

2006).

6

Plaintiff has not alleged facts that give rise to the reasonable inference that

7

Defendants’ use of force after his arrest was excessive. Although he states that an officer

8

injured him by tightening his handcuffs, he does not elaborate on the extent of these

9

injuries. Nor does he offer anything to rebut the inference that the officer’s conduct

10

might have been necessary to protect Plaintiff from injuring himself or others. Plaintiff

11

does not allege that he complained about the tightness of the handcuffs or that the officer

12

was otherwise made aware that the handcuffs were too tight. Because Plaintiff has not

13

alleged sufficient facts to support a reasonable inference that the officers’ use of force

14

after the arrest was objectively unreasonable, Plaintiff has not stated a viable excessive

15

force claim. Because it may be possible for Plaintiff to cure these deficiencies by

16

pleading additional facts, the Court will grant leave to amend this claim.

17

C.

18

Plaintiff cannot prevail on a Monell claim against Pinal County without first

19

proving that his constitutional rights were violated. Villegas v. Gilroy Garlic Festival

20

Ass’n, 541 F.3d 950, 957 (9th Cir. 2008) (“Because there is no constitutional violation,

21

there can be no municipal liability.”). Because Plaintiff’s excessive force claims have

22

been dismissed, his Monell claim must also be dismissed. This claim will be dismissed

23

with leave to amend because it may be possible for Plaintiff to cure this deficiency by

24

pleading additional facts.

Monell Claim.

25

IT IS ORDERED:

26

1.

Defendants’ motion to dismiss (Doc. 48) is granted.

27

2.

Plaintiff may file an amended complaint by March 11, 2016.

28

This

complaint may assert any claims Plaintiff may have based on Defendants’

-6-

1

conduct after the arrest. But Plaintiff may not assert an excessive force

2

claim based on conduct occurring during the arrest unless he shows that his

3

conviction has been overturned or invalidated. If Plaintiff fails to file an

4

amended complaint by March 11, 2016, the Clerk is directed to terminate

5

this matter without further order of the Court.

6

3.

The

Rule

16

Case

Management

Conference

currently

set

for

7

March 18, 2016 at 3:30 PM is vacated and will be reset if Plaintiff files an

8

amended complaint.

9

Dated this 16th day of February, 2016.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-