Contine v. Credio et al
ORDER - IT IS ORDERED granting Defendants' Motion to Dismiss (Doc. 9 ). Plaintiff's Complaint (Doc. 1 -2 at 1-7) is dismissed with prejudice. The Court further finds, in its discretion, that Defendants are entitled to an award of reason able attorneys' fees pursuant to 42 U.S.C. § 1988(b). Application for an award of attorneys' fees shall be filed in accordance with the Federal Rules of Civil Procedure within ten business days of the filing of this Order. See document for further details. Signed by Magistrate Judge Eileen S Willett on 06/05/2015. (ATD)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Ronald Credio, et al.,
The Court has considered Defendants’ Motion to Dismiss (Doc. 9) filed on May
12, 2015. No response has been filed. The matter is deemed submitted for decision. 1
LRCiv 7.2(i) provides that if counsel does not serve and file a timely responsive
memorandum to a motion, such non-compliance may be deemed a consent to the granting
of the pending motion, and the Court may summarily dispose of the motion. Therefore,
the Court may summarily dispose of Defendants’ Motion to Dismiss. In addition, the
Court finds upon review of the public records provided in Defendants’ Motion to
Dismiss, Plaintiff’s claims against Defendants are barred as a matter of law on the basis
of claim preclusion and issue preclusion. 2 In addition, Plaintiff’s Complaint fails to state
a claim as a matter of law. Therefore, the Court will dismiss Plaintiff’s Complaint with
prejudice on the merits.
The parties have consented to the exercise of Magistrate Judge jurisdiction
The Court may take judicial notice of public records.
Plaintiff previously litigated his current claim in Maricopa County Superior Court
CV 2013-001618. Final judgment was entered against Plaintiff in favor of the State of
Arizona and Arizona Department of Corrections on June 25, 2014. As employees of the
Arizona Department of Corrections, the named Defendants in this case are parties in
privity with the Arizona Department of Corrections for purposes of claim and issue
preclusion. See Corbett v. Manor Care of Am., Inc., 146 P.3d 1027, 1039 (Ariz. Ct. App.
2006). Defendants correctly set forth in their Motion to Dismiss the application of the
legal concepts of claim and issue preclusion to this case. Defendants further persuasively
set forth an analysis of how Plaintiff has failed to state a claim as a matter of law.
For the reasons set forth in Defendants’ Motion to Dismiss,
IT IS ORDERED granting Defendants’ Motion to Dismiss (Doc. 9). Plaintiff’s
Complaint (Doc. 1-2 at 1-7) is dismissed with prejudice.
The Court further finds, in its discretion, that Defendants are entitled to an award
of reasonable attorneys’ fees pursuant to 42 U.S.C. § 1988(b). Application for an award
of attorneys’ fees shall be filed in accordance with the Federal Rules of Civil Procedure
within ten business days of the filing of this Order.
Dated this 5th day of June, 2015.
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