Graven v. Arizona, State of et al

Filing 25

ORDER granting 7 and 11 Plaintiff's Motion to Amend/Correct; denying as moot 8 and 9 Plaintiff's Motions; granting 14 Defendants' Motion to Dismiss for Lack of Jurisdiction; denying as moot 20 Plaintiff's Motion for Judgment on the Pleadings; denying 22 Plaintiff's Motion for Hearing. The Clerk shall enter judgment accordingly. Signed by Judge G Murray Snow on 9/22/16. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William A. Graven,
Plaintiff,

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ORDER

v.

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No. CV-16-01249-PHX-GMS

State of Arizona, et al.,

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Defendants.

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Pending before the Court is Defendants State of Arizona, et al.’s motion to
dismiss. (Doc. 14.) For the following reasons, the Court grants the motion.1
BACKGROUND

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Plaintiff claims that he suffered a “catastrophic business failure” after a “pervasive

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internal criminal enterprise [was] formed and operated [between] several of [Plaintiff’s]

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executives,” and attorneys from the law firm of Snell & Wilmer. (Compl. ¶¶ 36, 44, 47,

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50–52, Ex. 6.)2 After the Special Investigations Section of the Attorney General’s Office

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reviewed Plaintiff’s allegations, a formal case was opened on June 16, 2012. (Id. ¶¶ 38–

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39.) To date, nine of Plaintiff’s former employees “have been indicted or negotiated pre-

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Defendant does not contest Plaintiff’s motions to correct, (Docs. 7, and 11).
Those motions are thus granted without objection. Plaintiff’s motion for declaration of
effective service, (Doc. 8), motion for effective service (Doc. 9), and requests for judicial
notice (Docs. 10 and 12), are denied as moot.
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On a motion to dismiss the Court may consider documents that are attached to
the complaint “without converting the motion to dismiss into a motion for summary
judgment.” Lee v. City. of L.A., 250 F.3d 668, 688 (9th Cir. 2001).

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indictment plea agreements, in five criminal cases for 60 felony counts.” (Id. ¶ 43.) The

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Attorney General, however, brought no criminal charges against Snell & Wilmer. (Id.

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¶¶ 56–58.)

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Michael Bailey and Chief of the Criminal Division Don Conrad who explained that

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“Snell & Wilmer[‘s conduct] . . . did not rise to the level of being criminal.” (Id. ¶¶ 79–

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80.)

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indictments against third persons constitutes a violation of his rights under the Fifth and

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Fourteenth Amendments to the United States Constitution, and also constitute the state

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law torts of selective prosecution, selective enforcement, prosecutorial misconduct,

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conspiracy to commit prosecutorial misconduct, and abuse of prosecutorial discretion.

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(Id. ¶¶ 112–146.)

On December 14, 2015, Plaintiff met with Assistant Attorney General

Plaintiff’s Complaint alleges that the Defendants’ refusal to seek criminal

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DISCUSSION
I.

Legal Standard

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The lack of subject matter jurisdiction may be raised at any time by the parties or

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the Court. See Fed. R. Civ. P. 12(h)(3); Augustine v. United States, 704 F.2d 1074, 1077

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(9th Cir. 1983).

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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

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

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555 (2007). While “a complaint need not contain detailed factual allegations . . . it must

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plead ‘enough facts to state a claim to relief that is plausible on its face.’” Clemens v.

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DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550

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U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content

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

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

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U.S. at 556).

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll

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allegations of material fact are taken as true and construed in the light most favorable to

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the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However,

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legal conclusions couched as factual allegations are not given a presumption of

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truthfulness, and “conclusory allegations of law and unwarranted inferences are not

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sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.

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1998).

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II.

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Analysis
The Eleventh Amendment acts as a limit on federal subject matter jurisdiction.

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Demery v. Kupperman, 735 F.2d 1139, 1149 n.8 (9th Cir. 1984).

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Amendment prohibits federal courts from hearing suits brought against an unconsenting

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state.” Brooks v. Sulphur Springs Valley Elec. Coop., 951 F.2d 1050, 1053 (9th Cir.

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1991). State agencies are also immune under the Eleventh Amendment from private

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actions or suits for injunctive relief in federal court. Mitchell v. L.A. Cmty. Coll. Dist.,

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861 F.2d 198, 201 (9th Cir. 1988). Additionally, the Eleventh Amendment bars damages

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suits against state officials in their official capacities. Will v. Mich. Dep’t of State Police,

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491 U.S. 58, 71 (1989). Here, Plaintiff’s complaint in its entirety is barred by the

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Eleventh Amendment.3

“The Eleventh

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Plaintiff’s complaint also fails to state a claim that is plausible on its face. As an

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initial matter, Plaintiff’s complaint is comprised almost entirely of legal conclusions,

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which are erroneous. Plaintiff does not cite to any legal authority that suggests that he

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has a federal right to have third parties criminally prosecuted by state officials. Nor does

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Plaintiff cite any authority that would allow him to bring a state law claim against state

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officials for their failure to criminally prosecute third persons that he believes should be

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prosecuted.

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immunity from damages liability for actions ‘intimately associated with the judicial phase

In fact, it is axiomatic that “criminal prosecutors may claim absolute

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Plaintiff explicitly asserted in his briefings that he sought to sue the individually
named defendants in their official capacity and not as individuals. (See Doc. 8 at 2.)
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of the criminal process,’ such as the prosecutor’s initiation of a prosecution and

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presentation of the state’s case.” Torres v. Goddard, 793 F.3d 1046, 1051 (9th Cir. 2015)

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(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).

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immunity is meant to protect[ ] the prosecutor from harassing litigation that would divert

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his time and attention from his official duties’ and to enabl[e] him to exercise

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independent judgment when deciding which suits to bring and in conducting them in

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court.” Id. (internal quotation marks and citation omitted). Here, Plaintiff’s claims assert

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an infringement of his rights based on the Defendants’ decision not to prosecute third-

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party individuals. The pertinent actions of the Defendants being challenged here were the

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actions of an advocate of the state determining whether to bring charges, not the actions

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of an administrator or an investigator; thus, Defendants’ actions are entitled to absolute

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immunity. Id. To the extent the Plaintiff names other non-prosecutors as defendants in

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his Complaint, he sets forth no plausible allegations suggesting that they have deprived

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him of a right under federal law or state law.

“Absolute prosecutorial

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Accordingly, Defendants’ motion to dismiss is granted.

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IT IS THEREFORE ORDERED:

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1.

Plaintiff’s motions to amend (Docs. 7, 11) are GRANTED.

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2.

Plaintiff’s motion for declaration of effective service (Doc. 8) is DENIED

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as moot.

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3.

Plaintiff’s motion for effective service (Doc. 9) is DENIED as moot.

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4.

Defendants’ motion to dismiss (Doc. 14) is GRANTED.

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5.

Plaintiff’s motion for judgment on the pleadings4 (Doc. 20) is DENIED as

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moot.

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Plaintiff framed his response to Defendants’ motion to dismiss as a motion for
judgment on the pleadings. (See Doc. 20.) As a result, the brief triggered a new pending
motion for judgment on the pleadings. The Court only addresses and rules upon
Defendants’ motion to dismiss. (Doc. 14.)
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Plaintiff’s motion for hearing (Doc. 22) is DENIED.

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The Clerk of Court is directed to enter judgment accordingly.

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Dated this 22nd day of September, 2016.

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Honorable G. Murray Snow
United States District Judge

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