Ericson v. Browder et al

Filing 15

ORDER: The Motion to Dismiss by Defendants (Doc. 7 ) is GRANTED and Counts 1 and 2 of the Complaint are dismissed. FURTHER ORDERED that Maricopa County be substituted as a party in lieu of the MCSO. Signed by Judge G Murray Snow on 1/11/16. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew Ericson,

No. CV-15-00628-PHX-GMS
Plaintiff,

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v.

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ORDER

Rebekah Browder, et al.,

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Defendants.

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Pending before the Court is the Motion to Dismiss by Defendants. (Doc. 7.) For
the following reasons, the Court grants the motion.
BACKGROUND

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The facts, as described in the Complaint (Doc. 1-1 at 22-26), are as follows. On

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September 7, 2011, officers from the City of Sedona Police Department, the City of

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Phoenix Police Department, and the Maricopa County Sheriff’s Office, working under

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the direct orders and supervision of Bill Montgomery of the Maricopa County Attorney’s

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Office, raided temples in Sedona and Phoenix and seized certain personal belongings of

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Plaintiff Matthew Ericson, including a 1998 Lexus automobile, computers, camera

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equipment, and copyrighted artwork created by Ericson, a professional artist. Ericson

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was not arrested and has never been charged with any crimes.

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On multiple occasions in 2011, Ericson requested the return of his property from

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various parties, including Maricopa County Attorney Rebekah Browder and Maricopa

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County Superior Court Judge Paul McMurdie. On December 20, 2011, Ericson filed a

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letter with Maricopa County Superior Court requesting the same. Ericson never received

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a forfeiture notice and was denied access to records regarding the seizure by every

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agency he contacted. On February 16, 2012, Erickson filed an objection to the forfeiture

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with the Clerk of the Superior Court. (Doc. 7-1 at 3.)1

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In November of 2013, Maricopa County Superior Court Judge Sherry Stephens

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issued an order to Ed Leiter, the prosecutor in a criminal case in which Ericson was

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involved as a non-party, to determine the status of Ericson’s seized property.

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On February 26, 2014, Ericson learned that his property had been forfeited in a

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“civil matter” and that Detective Spaw, who was in charge of the Maricopa County

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Prosecutor’s forfeiture division, was unaware of the criminal case that would support the

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seizure of Ericson’s property. In March 2014, Leiter informed Ericson that his car had

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been forfeited and sold and the whereabouts of his other property were unknown. On

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March 7, 2014, Prosecutor Leiter informed Judge Stephens that the seizure occurred

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before he became involved in the case and stated that Ericson would need to pursue civil

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remedies. Judge Stephens agreed.

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One year later, on March 6, 2015, Ericson filed his Complaint in state court,

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asserting two state claims, negligence (Count 1) and “theft” (Count 2), as well as one

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federal claim, “violation of civil rights” (Count 3). Defendants removed the case to

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federal court because the Complaint alleges civil rights violations under 42 U.S.C.

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§ 1983.

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DISCUSSION
I.

Legal Standard

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“A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Navarro v. Block,

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250 F.3d 729, 732 (9th Cir. 2001). “In deciding such a motion, all material allegations of

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On a motion to dismiss, the Court may take judicial notice of matters of public record
outside the pleadings. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.
1986).

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the complaint are accepted as true, as well as all reasonable inferences to be drawn from

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them.” Id. However, “the tenet that a court must accept as true all of the allegations

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contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009).

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To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than “labels and conclusions” or a “formulaic recitation of

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the elements of a cause of action”; it must contain factual allegations sufficient to “raise a

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right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

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(2007). A plaintiff must allege sufficient facts to state a claim to relief that is plausible

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on its face. Iqbal, 556 U.S. at 678. “A claim has facial plausibility when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin

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

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defendant has acted unlawfully.” Id.

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II.

Analysis

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A.

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Under Arizona’s notice of claim statute:

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Persons who have claims against a public entity . . . or a public employee
shall file claims with the person or persons authorized to accept service for
the public entity . . . or public employee as set forth in the Arizona rules of
civil procedure within one hundred eighty days after the cause of action
accrues. . . . Any claim that is not filed within one hundred eighty days after
the cause of action accrues is barred and no action may be maintained
thereon.

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State Law Claims (Counts 1 and 2)

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A.R.S. § 12-821.01(A) (emphasis added).

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damaged party realizes he or she has been damaged and knows or reasonably should

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know the cause, source, act, event, instrumentality or condition that caused or contributed

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to the damage.” Id. § 12-821.01(B).

The cause of action accrues “when the

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“The notice of claim requirements in A.R.S. § 12–821.01 serve to allow the public

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entity to investigate and assess liability, to permit the possibility of settlement prior to

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litigation, and to assist the public entity in financial planning and budgeting.” Falcon ex

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rel. Sandoval v. Maricopa Cty., 213 Ariz. 525, 527, 144 P.3d 1254, 1256 (2006). “Actual

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notice and substantial compliance do not excuse failure to comply with the statutory

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requirements of A.R.S. § 12–821.01(A).” Id.

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Here, the cause of action accrued, at the latest, by February 16, 2012, the date on

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which Ericson filed his objection to the forfeiture with the Clerk of the Superior Court.

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(See Doc. 7-1 at 3.) It is undisputed that Ericson did not notify Defendants of his claim

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until August 27, 2014, two and a half years after the claim accrued. As such, Ericson’s

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state law claims (Counts 1 and 2 of the Complaint) are time-barred by the notice of claim

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statute. Defendants’ motion to dismiss is granted as to Counts 1 and 2 of the Complaint.

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B.

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The Maricopa County Sheriff’s Office is a non-jural entity and therefore cannot

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properly be named as a party in this action. Braillard v. Maricopa Cnty., 224 Ariz. 481,

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232 P.3d 1263, 1269 (App. 2010). The Court therefore orders that Maricopa County be

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substituted as a party in lieu of the MCSO. See Melendres v. Arpaio, 784 F.3d 1254,

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1260 (9th Cir. 2015) cert. denied sub nom. Maricopa Cty., Ariz. v. Melendres (U.S. Jan.

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11, 2016); Fed.R.Civ.P. 21 (“Misjoinder of parties is not a ground for dismissing an

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action. On . . . its own, the court may at any time, on just terms, add or drop a party.”).

Non-Jural Entity

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C.

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In Ericson’s response to the motion to dismiss, he noted that he is acting pro se

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and requested that the Court inform him of any deficiencies in his pleadings. “In civil

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rights cases where the plaintiff appears pro se, the court must construe the pleadings

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liberally and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. Los

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Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). “Moreover, before dismissing a

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pro se civil rights complaint for failure to state a claim, the district court must give the

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plaintiff a statement of the complaint’s deficiencies. Id.

Federal Civil Rights Claim

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Here, Defendants did not move to dismiss Count 3 of the Complaint, which

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alleges that Ericson’s “constitutionally protected rights against unreasonable and/or

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unlawful search and seizure have been violated causing severe emotional and financial

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hardship.” (Doc. 1-1 at 5.) The Complaint provides a factual basis sufficient to support

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the claim.

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CONCLUSION
Ericson’s state law claims are barred as untimely by Arizona’s notice of claim

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statute.

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Sheriff’s Office is a non-jural entity and cannot be named as a party in this action.

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Regarding the remaining federal civil rights claim, the Maricopa County

IT IS THEREFORE ORDERED that the Motion to Dismiss by Defendants
(Doc. 7) is GRANTED and Counts 1 and 2 of the Complaint are dismissed.
IT IS FURTHER ORDERED that Maricopa County be substituted as a party in
lieu of the MCSO.
Dated this 11th day of January, 2016.

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Honorable G. Murray Snow
United States District Judge

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