Micolo v. Pinal, County of et al

Filing 66

ORDER granting 63 Motion to Dismiss for Failure to State a Claim. Plaintiff's second amended complaint (Doc. 62 ) is dismissed with prejudice. Plaintiff may not file another complaint in this case. The Clerk of the Court shall terminate this action. (See document for further details). Signed by Judge David G Campbell on 6/20/16. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Carmine Micolo,
Plaintiff,

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ORDER

v.

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No. CV-14-02649-PHX-DGC

County of Pinal, et al.,

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Defendants.

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Defendants Pinal County and Officer Stacy Sherwood move to dismiss Plaintiff

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Michael Micolo’s third amended complaint.1 Doc. 63. The issues are fully briefed

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(Docs. 64, 65), and no party has requested oral argument. For the following reasons, the

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Court will grant Defendants’ motion, with prejudice.

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I.

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Background.
On November 17, 2014, Plaintiff filed his initial complaint in Pinal County

Superior Court. Doc. 1-1 at 9-10. Defendants removed the case to this Court. Doc. 1.

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On December 31, 2014, Plaintiff filed his first amended complaint. Doc. 10. The

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

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Plaintiff’s state law claims. Doc. 24. The remaining claims were stayed pending the

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state court criminal proceedings against Plaintiff.

Docs. 38, 40, 42, 44, 47.

On

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Defendants refer to this as Plaintiff’s second amended complaint in their motion
to dismiss. This is actually Plaintiff’s third amended complaint. See Docs. 10, 60, 62.

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February 16, 2016, the Court dismissed Plaintiff’s excessive force claim against

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Defendant Sherwood pertaining to conduct that occurred during the arrest as barred by

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Heck v. Humphrey, 512 U.S. 477, 487 (1994), but permitted Plaintiff leave to amend his

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complaint to address conduct occurring after the arrest. Doc. 56 at 3-6. The Court also

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dismissed Plaintiff’s claim against Pinal County under Monell v. Department of Social

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Services, 436 U.S. 658 (1978), but granted leave to amend. Doc. 56 at 6.

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On March 11, 2016, Plaintiff filed his second amended complaint. Doc. 60. The

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Court dismissed the complaint because he failed to allege sufficient facts to state an

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excessive force claim relating to post-arrest conduct. Doc. 61 at 1. The Court dismissed

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Plaintiff’s malicious prosecution claims as barred by Heck, and again dismissed

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Plaintiff’s state law claims. Id. at 2. The Court granted leave to amend. Id.

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On April 13, 2016, Plaintiff filed his third amended complaint. Doc. 62. This

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complaint contains an excessive force claim pertaining to conduct that occurred after the

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arrest, as well as several state law claims.

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II.

Legal Standard.

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

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

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v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint that sets forth a

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

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

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

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

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

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

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“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

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than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550

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U.S. at 556).

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Pro se litigants are subject to the same pleading requirements as everyone else.

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

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

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

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

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

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

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

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

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(quotation marks and citation omitted).

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III.

Analysis.

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A.

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

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objectively unreasonable in light of the facts and circumstances confronting them.

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

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‘objectively unreasonable’ depends on several factors, including the severity of the crime

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

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whether the suspect was resisting arrest.” Tatum v. City & Cty. of S.F., 441 F.3d 1090,

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1095 (9th Cir. 2006).

Excessive Force Claim.

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Plaintiff was arrested for assaulting a police officer, resisting arrest, and

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trespassing. Doc. 62 at 3, ¶ 10. Plaintiff admits to resisting arrest.2 Id. at ¶ 12. Plaintiff

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alleges that Defendant Sherwood handcuffed him and, as a result of Plaintiff’s continuing

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to resist arrest, placed leg restraints on Plaintiff. Id. All of these actions presumably

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occurred as part of the Plaintiff’s arrest, and any claim based on them is barred by Heck.

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Plaintiff alleges that he suffered injuries from a lack of treatment during his

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transport to the hospital. Id. at 3-4, ¶ 15. He appears to claim that these injuries resulted

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from the inability of medical personnel to treat him due to his restraints. Id. But Plaintiff

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makes no allegations against Defendant Sherwood related to these post-arrest incidents.

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Plaintiff pleaded guilty to resisting arrest. See Doc. 47 at 1.
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He does not allege that Defendant Sherwood was present during his transport to the

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hospital, nor does he provide facts from which the Court could conclude that Defendant

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Sherwood’s restraints were excessive when applied or during transport. To the contrary,

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Plaintiff alleges that he was “actively resisting arrest” when the restraints were applied

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(id. at ¶ 12), and that a “fellow officer” – apparently someone other than Defendant

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Sherwood – concluded during transport “that he needed to restrained again” (id. at ¶ 15).

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These facts do not show that Defendant Sherwood engaged in any unconstitutional

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conduct after Plaintiff’s arrest, nor do they provide a basis for concluding that Plaintiff’s

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treatment during transport, apparently by another officer, was improper given his

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continued resistance and need for restraint. What is more, Plaintiff admits that he has no

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independent memory of any of these events. Id. at ¶ 16.

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Plaintiff’s other allegations regarding Defendant Sherwood, contained mostly in

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his state law claims, include mere conclusions that Sherwood acted improperly. They

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provide no additional factual support for the excessive force claim. Id. at ¶¶ 23-48.

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Plaintiff has again failed to allege sufficient facts to state an excessive force claim

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against Defendant Sherwood based on post-arrest conduct.

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attempt to allege such a claim. The Court is convinced that Plaintiff’s complaint could

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not be cured by further amendments. The Court will therefore dismiss the excessive

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force claim with prejudice.

This is Plaintiff’s third

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B

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The Court has dismissed Plaintiff’s state law claims on multiple occasions. See

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Docs. 24, 30, 61. Although Plaintiff has been granted leave to amend his complaint more

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than once, the Court never granted Plaintiff leave to amend or reassert his state law

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claims. For the reasons previously stated (see Doc. 30), and because his state law claims

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continue to contain only conclusions and virtually no facts, the Court will dismiss the

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state law claims with prejudice.

State Law Claims.

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IT IS ORDERED:

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granted.

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2.

Defendants’ motion to dismiss for failure to state a claim (Doc. 63) is

Plaintiff’s second amended complaint (Doc. 62) is dismissed with

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prejudice. Plaintiff may not file another complaint in this case. The Clerk of the Court

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shall terminate this action.

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Dated this 20th day of June, 2016.

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