Foor v. Phoenix, City of et al

Filing 9

ORDER: Plaintiff's motion for temporary restraining order (Doc. 2 ) is DENIED. Plaintiff's application for leave to proceed in forma pauperis (Doc. 3 ) is GRANTED. Plaintiff's motion and request for return of property (Doc. 4 ) is DENIED. Plaintiff's motion to stay (Doc. 5 ) is DENIED. Plaintiff's motion to e-file (Doc. 6 ) is DENIED. The Clerk of Court is directed to dismiss this action without prejudice. Signed by Judge G Murray Snow on 7/21/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jennifer Foor,

No. CV-16-01895-PHX-GMS
Plaintiff,

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v.

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ORDER

City of Phoenix, et al.,

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Defendants.

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Before the Court are Plaintiff Jennifer Foor’s request for a temporary restraining

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order (“TRO”), motion and request for return of property, motion to stay the order of a

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Phoenix City judge, and application to proceed in forma pauperis (“IFP”). (Doc. 2–5.)

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For the following reasons, the Court grants Plaintiff’s request to proceed IFP, but denies

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her other motions and dismisses her Complaint without prejudice.

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BACKGROUND

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On or about December 4, 2012, Defendant Arizona Humane Society (“AHS”)

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entered Plaintiff’s property and seized approximately forty of Plaintiff’s feral cats.

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(Compl. ¶ 12.) On or about December 7, 2012, the Phoenix Municipal Court ruled

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during Plaintiff’s post-seizure hearing that the seizure of Plaintiff’s cats was lawful.

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(Compl. ¶ 15.) After receiving a “Notice of Right to Appeal,” Plaintiff filed a special

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action on December 24, 2012 in the Maricopa County Superior Court. (Compl. ¶¶ 19–

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21.) During the hearing on March 25, 2013, the Superior Court ordered the Municipal

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Court to clarify its order and ruling. (Compl. ¶ 25.) On April 15, 2013, the Municipal

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Court clarified that in its previous ruling it had not forfeited Plaintiff’s rights to the cats.

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(Compl. ¶ 27.) As a result, the Municipal Court held a civil forfeiture hearing on April

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29, 2013, and any right Plaintiff had to the cats was forfeited due to sanitation issues.

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(Compl. ¶ 29.)

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On October 29, 2013, the Superior Court denied Plaintiff’s motion for special

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action and ruled that it could not substitute its judgment for the Municipal Court ruling.

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(Compl. ¶ 36.) On or about April 2, 2016, the Arizona Court of Appeals Division One

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affirmed the Superior Court’s decision. (Compl. ¶ 37.) On April 11, 2016, the Arizona

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Supreme Court denied review and subsequently denied Plaintiff’s motion for

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reconsideration. (Compl. ¶ 38.) On May 19, 2016, Plaintiff filed a motion for return of

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property, a motion to vacate the civil forfeiture, and a motion to reconsider the civil

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forfeiture in the Municipal Court. (Compl. ¶ 41.) The Municipal Court denied Plaintiff’s

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motion for return of property for lack of jurisdiction. (Compl. ¶ 42.)

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On February 7, 2013, the City of Phoenix Prosecutor’s Office filed an animal

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cruelty complaint against Plaintiff. (Compl. ¶ 24.) However, on or around August 6,

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2013, the criminal complaint was dismissed. (Compl. ¶ 31.) Upon dismissal, Plaintiff

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requested the return of her cats, but the City of Phoenix denied her request explaining that

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she needed to appeal her civil forfeiture. (Compl. ¶ 33.)

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On May 26, 2016, Plaintiff filed a complaint, a request for temporary restraining

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order, and a motion to stay within this District. (Doc. 8.) On May 27, 2016, the

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complaint was dismissed for lack of jurisdiction. Id.

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Plaintiff filed the instant complaint and motion on June 13, 2016, which seeks

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another TRO prohibiting the City of Phoenix and the AHS from disposing of her cats.

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Plaintiff’s Complaint, moreover, has been recast to raise federal questions and now

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alleges violations of her First, Fourth, Fifth, and Eighth Amendment rights pursuant to 42

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U.S.C. § 1983, as well as claims of malicious prosecution, intentional infliction of severe

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emotional distress, negligent infliction of severe emotional distress, criminal trespass, and

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intentional damage to private property.

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DISCUSSION
I.

Plaintiff’s TRO

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Plaintiff’s TRO consists of a single sentence asking this Court to enjoin the City of

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Phoenix and the AHS from disposing of her cats. Plaintiff, however, fails to make any

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argument or provide any basis on which this Court may act in accordance with her

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request. Plaintiff no longer has any rights to the cats due to the final judgment of the

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state court system forfeiting any interest she has to them. Plaintiff’s Complaint alleges

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various federal and state law violations, none of which weigh on the AHS’s authority (or

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lack thereof) to hold the cats to which Plaintiff may have had some rights. See Lopez v.

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Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (“A preliminary injunction is ‘an

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extraordinary and drastic remedy, one that should not be granted unless the movant, by a

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clear showing, carries the burden of persuasion.’”) (citation omitted). Plaintiff fails to

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make any showing; her request for a TRO is denied.

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II.

In Forma Pauperis

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Congress has provided that with respect to IFP cases a district court “shall dismiss

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the case at any time if the court determines” that the “allegation of poverty is untrue” or

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that the “action or appeal” is “frivolous or malicious,” “fails to state a claim on which

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relief may be granted,” or “seeks monetary relief against a defendant who is immune

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from such relief.” 28 U.S.C. § 1915(e)(2). While much of § 1915 outlines how prisoners

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can file proceedings in forma pauperis, section 1915(e) applies to all in forma pauperis

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proceedings not just those filed by prisoners. Lopez v. Smith, 203 F.3d 1122, 1127 (9th

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Cir. 2000). “It is also clear that section 1915(e) not only permits but requires a district

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court to dismiss an in forma pauperis complaint that fails to state a claim” or that is

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frivolous or malicious. Id. “[A] finding of factual frivolousness is appropriate when the

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facts alleged rise to the level of the irrational or wholly incredible, whether or not there

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are judicially recognized facts available to contradict them.” Denton v. Hernandez, 504

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U.S. 25, 33 (1992).

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The Court grants Plaintiff’s request for IFP and also dismisses the case for “failure

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to state a claim.” § 1915(e)(2). To survive dismissal for failure to state a claim, 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). When analyzing a complaint for failure to state a claim under Rule 12(b)(6),

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“[a]ll allegations of material fact are taken as true and construed in the light most

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favorable to the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir.

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1996).

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The Rooker-Feldman doctrine “bars federal courts from exercising subject-matter

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jurisdiction over a proceeding in which a party losing in state court seeks what in

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substance would be appellate review of the state judgment . . . based on the losing party's

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claim that the state judgment itself violates the loser’s federal rights.” Doe v. Mann, 415

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F.3d 1038, 1041 (9th Cir. 2005) (citing Johnson v. De Grandy, 512 U.S. 997, 1005–06

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(1994) (internal quotation marks omitted)).

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Here, Plaintiff’s claims for relief arising from the Superior Court case amounts to

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a de-facto appeal of the state court’s decision. See Cooper v. Ramos, 704 F.3d 772, 782

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(9th Cir. 2012) (finding that the Rooker-Feldman doctrine also bars any ancillary claims

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that are “inextricably intertwined” with the state court’s judgment). This Court could not

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grant Plaintiff’s requested remedy without reviewing the Municipal Court and Superior

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Court’s decision regarding the forfeiture of Plaintiff’s cats that has already been reviewed

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by the state Court of Appeals with review denied by the Arizona Supreme Court.

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Consequently, this Court lacks jurisdiction over such a review, and thus, Plaintiff’s

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claims are precluded by the Rooker-Feldman doctrine.

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Further, “[t]o state a claim for relief in an action brought under § 1983, [plaintiffs]

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must [allege] that they were deprived of a right secured by the Constitution or laws of the

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United States, and that the alleged deprivation was committed under color of state law.”

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Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). “Section 1983 ‘is not

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itself a source of substantive rights,’ but merely provides ‘a method for vindicating

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federal rights elsewhere conferred.’”

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(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). Here, Plaintiff alleges

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violations of her First, Fourth, Fifth, and Eighth Amendment rights. (Compl. ¶¶ 51, 62,

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68.)

Albright v. Oliver, 510 U.S. 266, 271 (1994)

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Since § 1983 does not contain a limitations period, federal courts look to the

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applicable state statute of limitations for determining whether a complaint brought under

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§ 1983 is timely.

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identifying the applicable statute of limitations, § 1983 actions are characterized as

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personal injury actions. Id. Under Arizona law, the statute of limitations for personal

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injury claims is two years. Ariz. Rev. Stat. Ann. § 12-542 (1985). However, federal law

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determines when a civil rights claim accrues. Morales v. City of L.A., 214 F.3d 1151,

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1154 (9th Cir. 2000). Under federal law, the time limit on a cause of action begins to run

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when the plaintiff “knows or has reason to know of the injury which is the basis of the

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action.” Trotter v. Int’l Longshoremen’s & Warehousemen’s Union Local 13, 704 F.2d

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1141, 1143 (9th Cir. 1983).

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Wilson v. Garcia, 471 U.S. 261, 276 (1985).

For purposes of

In this case, Plaintiff’s § 1983 claims arise out of the December 4, 2012 seizure of

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her cats.

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demonstrates her knowledge of the seizure of her cats. Therefore, Plaintiff’s § 1983

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claims are time-barred because she filed her complaint on June 13, 2016, more than three

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and a half years after the seizure of her cats. While the Complaint alleges “ongoing and

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continuous disputes between Plaintiff and Defendants” over the release of Plaintiff’s cat,

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“the facts do not give rise to the conclusion that Plaintiffs suffered the kind of injury for

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which the statute of limitations may be tolled,” Ybarra-Johnson v. Ariz., 2014 U.S. Dist.

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LEXIS 159725, at *11 (D. Ariz. Nov. 12, 2014) (Snow, J.). Further, it is not clear that

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such disputes have implicated Plaintiff’s federal rights in any way. The facts within

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Plaintiff’s Complaint allege, among other things, that since the initial removal of

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Plaintiff’s cats from her property, Defendants have violated her substantive and

Plaintiff’s December 7, 2012 appearance before the Municipal Court

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procedural due process rights, suppressed documents, and caused Plaintiff severe

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emotional distress. (Compl. ¶¶ 47, 58–100.) Regardless, “the ‘continuing violations’

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doctrine was not designed to extend the statute of limitations in cases involving discrete

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unlawful acts or continuing ill effects from an injury occurring outside the limitations

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period.” Ybarra-Johnson, 2014 U.S. Dist. LEXIS 159725, at *12 (citing Nat’l R.R.

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Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); Knox v. Davis, 260 F.3d 1009,

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1014–15 (9th Cir. 2001)). As a result, even when Plaintiff’s allegations are construed

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liberally in light of our notice pleading system, the “continuing violation” exception does

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not apply. Plaintiff had reason to know of her injuries on the date that the cats were

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removed from her property. Plaintiff’s allegations regarding Defendants’ wrongful acts

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that occurred after the initial seizure of her cats are, at most, “discrete, injury-producing

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acts of which the Plaintiff should have been aware when they occurred—not a continuing

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violation.” Id. Therefore, Plaintiff’s § 1983 claims are time-barred.

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Since Plaintiff’s rights to the cats were forfeited in an appropriate state judicial

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proceeding, and because there is no jurisdictional granting claim, Plaintiff does not have

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standing to pursue the malicious prosecution, intentional infliction of severe emotional

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distress, negligent infliction of severe emotional distress, criminal trespass, and

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intentional damage to private property claims in federal court. See 28 U.S.C. § 1367.

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CONCLUSION
For the foregoing reasons, the Court denies Plaintiff’s request for TRO and
dismisses Plaintiff’s Complaint pursuant to § 1915(e)(2).

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IT IS THEREFORE ORDERED that:

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1.

Plaintiff’s motion for temporary restraining order (Doc. 2) is DENIED.

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2.

Plaintiff’s application for leave to proceed in forma pauperis (Doc. 3) is

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GRANTED.

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3.

Plaintiff’s motion and request for return of property (Doc. 4) is DENIED.

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4.

Plaintiff’s motion to stay (Doc. 5) is DENIED.

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5.

Plaintiff’s motion to e-file (Doc. 6) is DENIED.

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Dated this 21st day of July, 2016.

The Clerk of Court is directed to dismiss this action without prejudice.

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Honorable G. Murray Snow
United States District Judge

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