Hernandez v. Chandler, City of et al

Filing 61

AMENDED ORDER: The reference to the Magistrate Judge is withdrawn as to Defendants City of Chandler and State of Arizona's Motions to Dismiss (Doc. 38 , 41 ) and Plaintiff's Motion for Preliminary Injunction 37 . The City of Chandler& #039;s Motion to Dismiss 38 is granted, and Plaintiff's claims against the City of Chandler are dismissed without prejudice pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. The State of Arizona 's Motion to Dismiss 41 is granted, and Plaintiff's claims against the State of Arizona are dismissed without prejudice pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. Plaintif f's Motion for Preliminary Injunction 37 is denied. Plaintiff's remaining claims in this action are his § 1983 claims against the individually named Defendants. Plaintiff has until July 8, 2024, to serve these Defendants or his claims against them may also be dismissed. See document for complete details. Signed by Judge Michael T Liburdi on 6/5/2024. (KLG)

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SKC

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Mario Alberto Hernandez,

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No. CV-23-01400-PHX-MTL (ESW)

Plaintiff,
v.

AMENDED ORDER

Chandler, City of, et al.,
Defendants.

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Plaintiff Mario Alberto Hernandez brought this pro se civil rights action in the

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Maricopa County Superior Court pursuant to 42 U.S.C. § 1983 and Arizona law, and

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Defendants City of Chandler, City of Chandler Municipal Court, and City of Chandler

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Police Department removed it to this Court and moved to dismiss the Complaint for failure

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to state claim. (Docs. 1, 4.) The Court found that removal was warranted, granted the

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Motion to Dismiss Plaintiff’s federal claims, declined supplemental jurisdiction over

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Plaintiff’s state law claims, and gave Plaintiff 30 days to file an amended complaint.

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(Doc. 17.) Plaintiff filed a First Amended Complaint (“FAC”) (Doc. 18), which the City

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of Chandler moved to dismiss (Doc. 20), and the Court again dismissed the federal claims

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without prejudice for failure to state a claim and declined supplemental jurisdiction over

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the state law claims. (Doc. 30.)

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Plaintiff has since filed a Second Amended Complaint (“SAC”), in which he names

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the City of Chandler, several individually named City of Chandler judicial officers and

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City of Chandler Police Department (“CPD”) officers and their spouses,1 and the State of

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Arizona. (Doc. 31.) Defendant City of Chandler (“the City”) has filed a Motion to Dismiss

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for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

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(Doc. 38), and Defendant State of Arizona (“the State”) has filed a Motion to Dismiss for

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lack of subject matter jurisdiction and for failure to state a claim pursuant to Rules 12(b)(1)

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and 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 41.) Both Motions are fully

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briefed. (Doc. 40, 44, 45, 49.) Also before the Court is Plaintiff’s Ex Parte Preliminary

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Injunction Against Defendant State of Arizona (“Motion for Preliminary Injunction”)

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(Doc. 37), which is also fully briefed. (Docs. 47, 48.)
The Court will grant the Motions to Dismiss and deny Plaintiff’s Motion for

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Preliminary Injunction.

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I.

Legal Standards

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A.

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Rule 12(b)(1) allows a defendant to raise the defense that the court lacks jurisdiction

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over the subject matter of an entire action or of specific claims alleged in the action. When

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considering a motion to dismiss for lack of subject matter jurisdiction, the Court takes as

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true the material facts alleged in the complaint. See Whisnant v. United States, 400 F.3d

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1177, 1179 (9th Cir. 2005). But the Court is not restricted to the face of the pleadings; it

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may consider affidavits to resolve any factual disputes concerning the existence of

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jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988) (citation

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omitted); see Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983)

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(consideration of material outside the pleadings did not convert a Rule 12(b)(1) motion into

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one for summary judgment). If a defendant files a Rule 12(b)(1) motion attacking the

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existence of subject‑matter jurisdiction, the plaintiff bears the burden of proving that

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jurisdiction exists. Thornhill Publ’g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733

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(9th Cir. 1979).

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....

Rule 12(b)(1)

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The individually named Defendants have not yet been served.
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B.

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Dismissal of a complaint, or any claim within it, for failure to state a claim under

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Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable

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legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’”

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Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining

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whether a complaint states a claim under this standard, the allegations in the complaint are

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taken as true and the pleadings are construed in the light most favorable to the nonmovant.

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Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A

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pleading must contain “a short and plain statement of the claim showing that the pleader is

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entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the

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statement need only give the defendant fair notice of what . . . the claim is and the grounds

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upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation

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omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible

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on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). “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.” Iqbal, 556 U.S. at 678.

Rule 12(b)(6)

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As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the

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face of the complaint and documents attached thereto. Van Buskirk v. Cable News

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Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner

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& Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). If a court considers evidence outside

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the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary

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judgment. United States v. Ritchie, 342 F.3d 903, 907–08 (9th Cir. 2003). A court may,

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however, consider documents incorporated by reference in the complaint or matters of

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judicial notice without converting the motion to dismiss into a motion for summary

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judgment. Id.

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....

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II.

The SAC

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Plaintiff’s claims in this action arise from Defendants’ alleged violations of

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Plaintiff’s federal and state constitutional rights in connection with an order of protection

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Plaintiff’s wife, Mia Ariel Ingram, sought and obtained against Plaintiff in the Chandler

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Municipal Court. Plaintiff’s 70-page SAC contains more than 400 paragraphs, many of

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which randomly repeat the same or similar factual allegations and/or contain only

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conclusory language, such as alleging that Defendants showed “callous disregard for

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Plaintiff’s rights,” or their conduct “illuminated the erosion of fundamental principles of

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justice and due process,” see, e.g., FAC ¶¶ 69, 70, instead of providing a “short and plain

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statement” of what each Defendant allegedly did to violate Plaintiff’s rights, as is required

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“to show that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This vagueness and

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the unwieldy and repetitive nature of the pleadings make it difficult to parse out the factual

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bases of Plaintiff’s claims.2

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Eliminating the repeated allegations and wholly conclusory statements, the factual

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bases of Plaintiff’s claims can be condensed into the following sequence of alleged events

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and actions: (1) Judicial Officer Monica K. Lindstrom’s3 alleged ex parte grant of an order

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of protection against Plaintiff; (2) Defendant CPD Officer Ramer’s and another officer’s

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alleged conduct on June 30, 2022, when these officers allegedly served the ex parte order

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The Court is mindful that where, as here, Plaintiff is proceeding pro se, it must
liberally construe the pleadings in his favor. Capp v. Cnty. of San Diego, 940 F.3d 1046,
1052 (9th Cir. 2019) (“We have emphasized that pro se pleadings, such as the FAC in this
case, are to be liberally construed on a motion to dismiss”). Nonetheless, Plaintiff should
be aware that he is still required to adhere to the federal and local rules of civil procedure,
included Rule 8 pleading standards.
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It is not clear from the SAC whether Plaintiff intended to name Lindstrom as a
Defendant in this action. Although Plaintiff refers to her as a “Defendant” in some of his
factual allegations, he did not name her in the caption of the SAC or identify her as one of
the parties in the “parties” section of the SAC. In any case, it is immaterial at this juncture
whether Plaintiff intended to state a claim against Lindstrom because none of the
individually named Defendants have been served, and the Motions before the Court pertain
only to Plaintiff’s claims against the City and State.
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of protection on Plaintiff at his Chandler residence, unlawfully searched his home, and

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permitted his home to be “robbed” in the presence of Plaintiff’s son; (3) the City’s alleged

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policy at the time of Plaintiff’s July 11, 2022 hearing that hearings regarding orders of

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protection must be held remotely, despite the Arizona Supreme Court’s recommendation

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that such hearings be held in person; (4) the Chandler Municipal Court’s July 11, 2022

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decisions to keep the order of protection against Plaintiff in place; (5) the Chandler

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Municipal Court’s alleged failure to permit Plaintiff to cross-examine his wife; (6) CPD

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Defendant Officers’ alleged failures to intervene, write a report, or investigate an

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additional, September 3, 2022 “robbery” of Plaintiff’s residence, wherein the officers stood

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by while Defendant Antoinette Ingram4 took property from the residence in the presence

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of Plaintiff’s son and placed items in a Penske moving truck; (6) Officer Ramer’s alleged

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September 10, 2022 phone calls to Plaintiff in which Ramer asked Plaintiff questions about

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Plaintiff’s whereabouts without a lawyer present and without informing Plaintiff of his

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rights; (7) Officer Ramer’s alleged arrest of Plaintiff and unlawful search of Plaintiff’s

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residence after Plaintiff moved back into the residence on September 10, 2022, even though

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Plaintiff’s appeal of the order of protection against him was still pending and Plaintiff had

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been informed by the property owner that he could move back in because his wife had

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moved out; (7) unknown Defendants’ alleged questioning of Plaintiff on September 10 and

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It is unclear from the allegations in the SAC who Defendant Antoinette Ingram is
or what her role was. In the section of the SAC listing the parties, Plaintiff identifies
Defendant Ingram only as “a citizen of the United States of America, acting under the laws
of the State of Arizona” and states she is being “sued in her individual capacity as a citizen
of Maricopa County.” (SAC ¶¶ 13−14.) Plaintiff identifies “Mia Ariel Ingram” as his
wife, from whom he is separated, and he confusingly refers to both Defendant Ingram and
his wife Mia Ingram at times as “Ms. Ingram.” (See, e.g., id. ¶¶ 13, 57, 87.) Elsewhere in
the SAC, Plaintiff identifies Defendant “Antoinette Ingram” as an individual “committing
the robbery” of Plaintiff’s property (id. ¶ 251), but this and other allegations about
Defendant Ingram and the alleged robbery are disjointed and do not clarify what, if any,
relationship Defendant Ingram has to Plaintiff or his wife Mia Ingram or if, perhaps,
Antoinette Ingram and Mia Ingram are one and the same person.

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November 11, 2022 without informing him of his rights;5 and (8) the City and State’s

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alleged September 10 and November 11, 2022 decisions to criminally charge and prosecute

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Plaintiff for violating the order of protection.

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In Counts One through Seven, Plaintiff asserts federal claims against both the City

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and the State, and he variously includes some or all of the individually named Defendants.6

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III.

The City’s Motion to Dismiss

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A.

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To state a claim under § 1983, a plaintiff must allege facts supporting that (1) the

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conduct about which he complains was committed by a person acting under the color of

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state law and (2) the conduct deprived him of a federal constitutional or statutory right.

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Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). In addition, a plaintiff must allege

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that he suffered a specific injury as a result of the conduct of a particular defendant and he

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must allege an affirmative link between the injury and the conduct of that defendant. Rizzo

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v. Goode, 423 U.S. 362, 371-72, 377 (1976).

Section 1983 Legal Standard

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A municipality may not be sued under § 1983 solely because an injury was inflicted

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by one of its employees or agents. Long v. Cnty of Los Angeles, 442 F.3d 1178, 1185 (9th

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Plaintiff alleges he was questioned on these dates “without be[ing] advised of his
rights,” but he does not identify who questioned him or allege any facts about the nature of
the questioning. (SAC ¶¶ 123, 136.)
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Following these Counts, the SAC contains a section labelled “State Law Claims,”
which contains eight additional counts under Arizona law. (SAC at 54−69.) Plaintiff
expressly states in the SAC that he “excludes” these claims from the instant action because
the Court previously declined supplemental jurisdiction over them, and Plaintiff intends to
move to remand them to state court. (Id. ¶¶ 232−33.) Because these claims are not part of
this action or at issue in the currently pending Motions, the Court will not address them in
this Order. Moreover, the Court already denied Plaintiff’s Motion to Remand his state law
claims on the ground that it previously declined supplemental jurisdiction over these claims
and dismissed them from this action, and Plaintiff did not reassert them in his SAC.
(Doc. 35.) In that same Order, the Court informed Plaintiff that, if he wished to reassert
his state law claims in this action, he must do so by seeking leave to file a third amended
complaint in accordance with Rule 15 of the Federal Rules of Civil Procedure and Rule
15.1 of the Local Rules of Civil Procedure, but Plaintiff did not seek such leave. (Id. at 2.)
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Cir. 2006). Rather, the municipality is liable only when the execution of its policy or

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custom inflicts the constitutional injury. Id.; see Miranda v. City of Cornelius, 429 F.3d

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858, 868 (9th Cir. 2005); Leatherman v. Tarrant Cnty. Narcotics Intel. and Coordination

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Unit, 507 U.S. 163, 166 (1993); Monell v. New York Dep’t of Soc. Servs., 436 U.S. 658,

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694 (1978) (“[I]t is when execution of a government’s policy or custom, whether made by

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its lawmakers or by those whose edicts or acts may fairly be said to represent official

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policy, inflicts the injury that the government as an entity is responsible under § 1983”).

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Therefore, a § 1983 claim against a municipal defendant “cannot succeed as a matter of

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law” unless a plaintiff: (1) contends that the municipal defendant maintains a policy or

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custom pertinent to the plaintiff’s alleged injury; and (2) explains how such policy or

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custom caused the plaintiff’ s injury. Sadoski v. Mosley, 435 F.3d 1076, 1080 (9th Cir.

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2006) (affirming dismissal of a municipal defendant pursuant to Fed. R. Civ. P. 12(b)(6)).

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B.

Discussion
1.

Count One: Procedural Due Process

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In Count One, Plaintiff alleges that the City violated his procedural due process

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rights at his July 11, 2022, order-of-protection hearing by holding that hearing remotely

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and not permitting Plaintiff to cross-examine his wife. (SAC ¶¶ 149−50.) Plaintiff also

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alleges that the City, acting through the Chandler Municipal Court, “recklessly charged

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Plaintiff on September 10th, 2022, and November 11th 2022” with failure to comply with

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court orders and “knowingly and willfully facilitated a hearing and criminal charges that

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systematically undermined Plaintiff’s due process rights.” (Id. ¶¶ 136, 147.)

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The City argues that, to the extent Plaintiff alleges it has a policy of holding order-

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of-protection hearings remotely, he fails to state a claim based on this alleged policy

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because he fails to allege any facts showing he suffered a due process violation based on

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the remote nature of his July 11, 2022, hearing. (Doc. 38 at 8.) The City relies on Mathews

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v. Eldridge for the proposition that due process requires only “the opportunity to be heard

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at a meaningful time and in a meaningful manner,” 424 U.S. 319, 333, (1976) (internal

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quotation marks and citations omitted), and it argues that Plaintiff did not allege that the

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remote nature of the proceeding prevented him from offering testimony, presenting

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evidence, or calling witnesses on his own behalf. (Id. at 8−9.) The City also argues that

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Plaintiff did not allege he suffered any injury from the hearing being conducted remotely

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rather than in person, absent which he cannot state a claim. (Id. at 9.)

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In his Response, Plaintiff argues that the City’s remote hearing procedures

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“substantially hindered [his] capacity to mount a thorough defense,” but he does not point

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to any allegations in the SAC from which to plausibly infer that he was not afforded a

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meaningful right to be heard. (Doc. 40 at 3−4.) Absent any allegations showing that the

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remote nature of the hearing prevented Plaintiff from presenting a meaningful defense,

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Plaintiff fails to state a due process claim based on the City’s alleged policy of requiring

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order-of-protection hearings to be held remotely.

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The parties do not address Plaintiff’s additional allegations that Plaintiff was unable

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to cross-examine his wife at this hearing, but even if Plaintiff could state a due process

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claim on this basis,7 he fails to do so. First, Plaintiff did not allege that he ever requested

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to cross-examine any witnesses during the hearing and was denied. He also did not allege

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any non-conclusory facts about the hearing from which to infer he suffered harm due to his

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alleged inability to cross-examine his wife. Finally, Plaintiff fails to allege any facts from

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which to infer that the City had an official policy or regular practice of denying order-of-

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protection defendants the right to cross-examine witnesses, absent which he cannot hold

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the City liable for any alleged violation. Long, 442 F.3d at 1185.

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Plaintiff’s remaining allegations that the City recklessly charged Plaintiff and

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“knowingly and willfully facilitated a hearing and criminal charges that systematically

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undermined Plaintiff’s due process rights,” also fail to state a claim against the City. In

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addition to being wholly conclusory, these allegations appear to be based solely on the

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alleged actions of CPD officers or judicial officials, not on any policies or regular practices

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See, e.g., Goldberg v. Kelly, 397 U.S. 254, 269 (1970) (“In almost every setting
where important decisions turn on questions of fact, due process requires an opportunity to
confront and cross-examine adverse witnesses.”).
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of the City for which the City can be held liable. See Monell, 436 U.S. at 694 (1978) (a

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municipality “cannot be held liable solely because it employs a tortfeasor”); City of

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Oklahoma City v. Tuttle, 471 U.S. 808, 831 (1985) (“To infer the existence of a city policy

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from the isolated misconduct of a single, low-level officer, and then to hold the city liable

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on the basis of that policy, would amount to permitting precisely the theory of strict

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respondeat superior liability rejected in Monell.”). The Court will dismiss Count One

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against the City for failure to state a claim.

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2.

Count Two: Deliberately Indifferent Policies and Training

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In Count Two, Plaintiff asserts a Fourteenth Amendment due process claim against

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the City based on its allegedly deliberately indifferent policies, practices, customs, training,

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and supervision. The City argues that Plaintiff fails to state a claim because his allegations

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are “wholly vague and mere conclusory statements that fail to identify with specificity what

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the City[’s] policies are or how Plaintiff’s injuries derived from these policies,” and

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Plaintiff “fails to allege sufficient facts to support any theory of municipal liability.”

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(Doc. 38 at 10, 11.) The Court agrees.

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The only official city policy Plaintiff identifies in the SAC is the City’s alleged

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policy in effect at the time of his order-of-protection hearing of holding such hearings

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remotely instead of in person. (SAC ¶ 176.) As already discussed, Plaintiff fails to allege

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any facts showing he suffered a constitutional violation due to the remote nature of that

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hearing, and he therefore fails to state a claim based on this alleged policy.

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Plaintiff also fails to state a claim based on any alleged unconstitutional customs or

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practices of the City. Plaintiff instead provides only “formulaic recitation[s] of the

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elements of a cause of action,” which the Supreme Court has found “will not do” to state a

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claim. Twombly, 550 U.S. at 555. He alleges, for example, that the City “developed and

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maintained policies, procedures, customs, and/or practices exhibiting deliberate

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indifference to the constitutional rights of citizens, which were moving forces behind and

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proximately caused the violations of Plaintiff’s constitutional and federal rights as set forth

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herein and in the other claims, resulted from a conscious or deliberate choice to follow a

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course of action among various available alternatives.” (SAC ¶ 175.) In a similar vein, he

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alleges that the City “has created and tolerated an atmosphere of lawlessness, having

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developed and maintained long-standing, department-wide customs, law enforcement-

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related policies, procedures, customs, practices, and/or failed to properly train and/or

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supervise its officers and employees in a manner amounting to deliberate indifference to

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the constitutional rights of Plaintiff and of the public.” (Id. ¶ 178.) Such allegations,

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devoid of any underlying facts, fail to meet federal pleading standards, which equally apply

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in the Monell context. See, e.g., A.E. ex rel. Hernandez v. Cnty. of Tulare, 666 F.3d 631,

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637 (9th Cir. 2012) (“[A]llegations in a complaint . . . may not simply recite the elements

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of a cause of action, but must contain sufficient allegations of underlying facts to give fair

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notice and to enable the opposing party to defend itself effectively . . . [and] must plausibly

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suggest an entitlement to relief, such that it is not unfair to require the opposing party to be

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subjected to the expense of discovery and continued litigation. This standard applies to

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Monell claims . . . .”) (citations omitted); Brown v. Cnty. of Mariposa, No. 1:18-CV-01541-

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LJO-SAB, 2019 WL 4956142 *4 (E.D. Cal. Oct. 8, 2019) (same).

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Plaintiff also fails to state a claim against the City based on failure to train or

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supervise. A plaintiff pursuing municipal liability based on a failure to train/supervise must

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allege that the municipality exhibited “‘deliberate indifference to the rights of persons’ with

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whom [its] employees are likely to come into contact.” Lee v. City of Los Angeles, 250

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F.3d 668, 681 (9th Cir. 2001) (citation omitted). “‘[D]eliberate indifference’ is a stringent

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standard of fault, requiring proof that a municipal actor disregarded a known or obvious

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consequence of his action.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okl. v. Brown, 520 U.S.

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397, 410 (1997). It may be shown if “the need for more or different training is so obvious,

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and the inadequacy so likely to result in the violation of constitutional rights, that the

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policymakers of the city can reasonably be said to have been deliberately indifferent to the

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need.” City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989). “A pattern of similar

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constitutional violations by untrained employees is ‘ordinarily necessary’ to demonstrate

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deliberate indifference for purposes of failure to train.” Connick, 563 U.S. at 62 (quoting

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Bd. of Cnty. Comm’rs, 520 U.S. at 409). “Without notice that a course of training is

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deficient in a particular respect, decisionmakers can hardly be said to have deliberately

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chosen a training program that will cause violations of constitutional rights.” Id. at 62. “A

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municipality’s culpability for a deprivation of rights is at its most tenuous where a claim

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turns on a failure to train.” Id. at 61.

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As above, Plaintiff merely alleges in conclusory fashion that the City “engaged in

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the establishment and enforcement of policies, practices, customs, training, and supervision

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that demonstrate deliberate indifference to the constitutional rights of individuals, thereby

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violating the Fourteenth Amendment.”

(SAC ¶ 183.)

He does not allege any

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nonconclusory facts from which to infer that the City was on notice that its training and/or

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supervision was deficient in a particular respect, and it deliberately disregarded the known

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or obvious consequences of failing to train or supervise in those areas. Absent any

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underlying facts about the City’s training or the deficiencies thereof, Plaintiff’s mere

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“formulaic recitation of the elements of a cause of action,” Twombly, 550 U.S. at 555,

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likewise fails to state a claim based on failure to train. The Court will dismiss Count Two

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against the City for failure to state a claim.

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3.

Count Three: Unlawful Search and Seizure

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In Count Three, Plaintiff asserts Fourth and Fifth Amendment unlawful search and

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seizure claims against the City. These claims appear to be based on (1) Defendant Ramer’s

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questioning of Plaintiff by phone without informing Plaintiff of his rights, (2) Defendants

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Ramer and Thomas’ alleged search of Plaintiff’s residence without a warrant, and (3) the

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City’s alleged failure to properly train, supervise, or discipline its law enforcement officers.

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The City argues that Plaintiff fails to state a claim against it because he fails to allege

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any facts showing the City had a policy or custom of conducting illegal searches and

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seizures or of conducting interrogations without Miranda warnings. (Doc. 38 at 11.) The

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City further argues that, to the extent these claims are based on failure to train or supervise,

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Plaintiff fails to allege any facts related to the City’s training or supervision of its officers

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or any facts showing how any alleged inadequacies in that training or supervision caused

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Plaintiff’s injuries. (Id. at 11-12.) The City lastly argues that Plaintiff fails to allege

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sufficient facts to show any underlying Fourth or Fifth Amendment violations. (Id. at 12.)

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Plaintiff’s claims against the City in Count Three fail for the same reasons already

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discussed related to his claims in Count Two based on failure to train and supervise. Even

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if Plaintiff could state an underlying Fourth or Fifth Amendment violation, he fails to allege

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any nonconclusory facts connecting any alleged violations to any policies, practices, or

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customs of the City or showing that the City failed to train its officers on the Fourth and

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Fifth Amendment rights of citizens and was aware of and deliberately indifferent to the

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known or obvious consequences of those failures to train. The Court will dismiss Count

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Three against the City for failure to state a claim.

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4.

Count Four: Police Interrogation without Miranda

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In Count Four, Plaintiff asserts a Fifth Amendment claim based on Defendant

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Officer Cohen’s alleged phone interrogations of Plaintiff on September 10, 2022.8 This

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claim suffers from the same deficiencies discussed above. Once again, even if Plaintiff

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could state a claim based on Officer Cohen’s alleged interrogation of Plaintiff without

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Miranda warnings, Plaintiff fails to allege any nonconclusory facts from which to infer that

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the alleged violations were due to any city policies, customs, or alleged failures to train.

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The Court will dismiss Count Three against the City for failure to state a claim.

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5.

Count Five: Failure to Intervene

In Count Five, Plaintiff asserts a Fourteenth Amendment claim for failure to

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Plaintiff elsewhere alleged in the SAC that “he was questioned without the
presence of a lawyer via a phone call by Chandler City Police Defendant Officer Ramer
and later Officer Cohen,” but he did not allege any facts about the call from Cohen. (SAC
¶ 159.) For the first time in Count Four, Plaintiff alleged that, after he returned home from
the criminal trial against him on November 9, 2022, he received a phone call from Cohen
“wanting to ask questions about an incident regarding the Plaintiff’s son,” and even though
Plaintiff accused Cohen of harassment and told Cohen about his pending lawsuit against
the City, Cohen “refused to leave the Plaintiff alone and persisted in questioning the
Plaintiff about violating the fraudulent Order of Protection without advising the Plaintiff
of his 5th amendment rights.” (Id. ¶¶ 226−30.)
8

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1

intervene based on Defendant CPD Officers’ alleged failures to intervene in the “ongoing

2

robbery” at Plaintiff’s residence on September 3, 2022. Plaintiff once again fails to allege

3

any nonconclusory facts from which to connect any alleged violations by the officers on

4

the scene that day to any city policies, customs, or alleged failures to train. The Court will

5

dismiss Count Five against the City for failure to state a claim.

6

6.

Count Six: Defamation

7

In Count Six, Plaintiff attempts to assert a § 1983 defamation claim against the City

8

based on various false and defamatory statements his wife allegedly made about him to

9

CPD officers or in Chandler Municipal Court proceedings. As the legal basis for this claim,

10

Plaintiff relies on Garrison v. State of Louisiana, 379 U.S. 64 (1964), a Supreme Court

11

case pertaining to the constitutionality a Louisiana criminal defamation statute, which is

12

not applicable here. (Id. ¶ 281.) The City cites to Ulrich v. City & County of San

13

Francisco, 308 F.3d 968, 982 (9th Cir. 2002), in which the Ninth Circuit recognized that

14

defamation by government officials may support a Fourteenth Amendment claim for

15

deprivation of liberty if the plaintiff can meet the “stigma-plus test,” and it argues that

16

Plaintiff fails to state such a claim. (Doc. 38 at 15.)

17

Liberally construing Plaintiff’s defamation claim as a Fourteenth Amendment

18

deprivation of liberty claim to which the “stigma-plus test” applies, Plaintiff must allege

19

sufficient facts to make the following showings: “the public disclosure of a stigmatizing

20

statement by the government, the accuracy of which is contested, plus the denial of some

21

more tangible interest such as employment, or the alteration of a right or status recognized

22

by state law.” Ulrich, 308 F.3d at 982 (emphasis in original).

23

The City argues that Plaintiff fails to meet this test because he does not allege any

24

facts showing the City or its employees publicly disclosed a stigmatizing statement, and to

25

the extent he relies on the allegedly false and stigmatizing statements made by his wife, he

26

does not allege that his wife was acting under color of state law; nor does he allege that she

27

is an employee or agent of the City such that her statements can be attributed to it. (Doc.

28

38 at 15.) The City also argues that Plaintiff’s allegations that these statements “led to the

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1

deprivation of Plaintiff’s property and parental rights” are too conclusory to satisfy the

2

final prong of the stigma-plus test. (Id.) And, as with Plaintiff’s prior attempts to state a

3

Monell claim against the City, the City argues that Plaintiff fails to allege any facts showing

4

that the alleged defamation was due to an official policy or custom of the City. (Id.)

5

Plaintiff’s attempted defamation claim against the City fails on the first prong of the

6

stigma-plus test because Plaintiff only alleges that his wife, a non-state actor, made false

7

and defamatory statements about him to police and in court proceedings, which were

8

“strategically used in various contexts,” to “create a false narrative” that permitted the

9

alleged September 3, 2022 “robbery” of Plaintiff’s residence and influenced court

10

decisions in Plaintiff’s divorce and parental rights proceedings. (SAC ¶¶ 284−296.)

11

Plaintiff does not allege that any government actors publicly disclosed any false and

12

defamatory statements. To the extent he relies on the municipal court judge’s admission

13

of allegedly false and defamatory statements in public court proceedings to satisfy this

14

prong, Plaintiff also fails to state a claim. It was not a violation of Plaintiff’s due process

15

rights in a judicial proceeding for the judge to permit Plaintiff’s wife to testify and enter

16

evidence against him or for the court to weigh this evidence when determining Plaintiff’s

17

property, marital, and parental rights under state law. Carey v. Piphus, 435 U.S. 247, 263

18

(1978) (“injury caused by a justified deprivation . . . is not properly compensable under §

19

1983”). The Court will dismiss Count Six against the City for failure to state a claim.

20

7.

Count Seven: Negligent Infliction of Emotional Distress

21

In Count Seven, Plaintiff attempts to assert a negligent infliction of emotional

22

distress (“NIED”) claim against all Defendants under § 1983. He alleges that “Defendants,”

23

as a whole, “engaged in a pattern and practice of conduct that they knew or should have

24

known would cause severe emotional distress.” (SAC ¶ 304). In addition to relying

25

generally on all prior allegations in the SAC, Plaintiff makes additional, solely conclusory

26

allegations, such as that “Defendants,” as a group, “conspire[ed] to undermine the legal

27

process and deny Plaintiff due process rights,” and “engag[ed] in a pro-women agenda

28

aimed at destroying the role of men in families and communities.” (SAC ¶¶ 312, 313.)

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1

“[W]here injury such as mental and emotional distress is caused by [a] constitutional

2

violation, that injury is compensable under section 1983.” Anderson v. Cent. Point Sch.

3

Dist. No. 6, 746 F.2d 505, 508 (9th Cir. 1984) (citing Carey, 435 U.S. at 263). As an initial

4

matter, Plaintiff does not identify a specific constitutional violation underlying his NIED

5

claim. Liberally construed, this claim arises, if at all, from the alleged constitutional

6

violations of unspecified “Defendants” in the previous Counts. As discussed, though,

7

Plaintiff’s allegations in the SAC are too conclusory to show the City had a policy or

8

custom that caused any violations of his constitutional rights. The allegations in Count

9

Seven are equally conclusory and likewise fail to make this showing. The Court will

10

dismiss Count Seven against the City for failure to state a claim.

11

IV.

The State’s Motion to Dismiss

12

Plaintiff includes the State as a Defendant in all the Counts already discussed, except

13

for Count Four, in which he alleges a Fifth Amendment Miranda violation against only the

14

City and Defendant Officer Cohen. Plaintiff alleges that the State is liable for the various

15

alleged violations of his constitutional rights on the ground that it is allegedly responsible

16

for all “policing activities” within the State; it allegedly established or delegated judicial

17

authority to the City of Chandler Municipal Court, for which it allegedly acts as a “parent

18

judiciary”; and it is allegedly the policymaker for the City. (SAC ¶¶ 45−49, 162, 172.)

19

The State moves to dismiss all claims against it on the ground that it has Eleventh

20

Amendment immunity to suits against it in federal court, which it has not waived; it is not

21

a “person” or a municipality that can be sued as a “person” under § 1983; and there is no

22

vicarious liability under § 1983 whereby Plaintiff can hold the State liable for any of the

23

alleged constitutional violations. (Doc. 41 at 6−9.) The State also argues that the claims

24

against it should be dismissed with prejudice because amendment would be futile. (Id. at

25

8, 9.)

26

Under the Eleventh Amendment to the Constitution of the United States, neither a

27

state nor a state agency may not be sued in federal court without the state’s consent.

28

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); Taylor v. List, 880

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1

F.2d 1040, 1045 (9th Cir. 1989) (applying Eleventh Amendment immunity to a plaintiff’s

2

§ 1983 claims against a state agency). The Eleventh Amendment serves as a “constitutional

3

bar against hearing even federal claims that otherwise would be within the jurisdiction of

4

the federal courts. Pennhurst, 465 U.S. at 89 (emphasis in original). A state’s Eleventh

5

Amendment immunity from suit “is not absolute” because “Congress may authorize such

6

a suit in the exercise of its power to enforce the Fourteenth Amendment,” which post-dates

7

the Eleventh Amendment, and “a State may waive its sovereign immunity by consenting

8

to suit.” Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,

9

670 (1999). Although a state’s waiver must be unambiguous, an “express waiver” is not

10

always required. Hill v. Blind Indus. & Servs. of Maryland, 179 F.3d 754, 758−59 (9th

11

Cir.), opinion amended on denial of reh’g, 201 F.3d 1186 (9th Cir. 1999). “[A] waiver of

12

Eleventh Amendment immunity has been found when the state’s conduct during the

13

litigation clearly manifests acceptance of the federal court’s jurisdiction or is otherwise

14

incompatible with an assertion of Eleventh Amendment immunity.” Id. “[A] State

15

defendant that removes a case to federal court waives its immunity from suit on all federal-

16

law claims in the case.” Walden v. Nevada, 945 F.3d 1088, 1094 (9th Cir. 2019).

17

Here, Plaintiff added the State as a Defendant only after the City and other City

18

entities removed this action to federal court, so the State did not waive its Eleventh

19

Amendment immunity by consenting to federal court jurisdiction. The State has also not

20

expressly waived its immunity or engaged in any other conduct that manifests an

21

unambiguous acceptance of this Court’s jurisdiction. Instead, the State expressly invoked

22

its Eleventh Amendment immunity at the earliest possible juncture by moving to dismiss

23

Plaintiff’s claims against it in the SAC, thereby providing fair notice that it would not

24

submit to being sued in this action. See Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144,

25

1147 (9th Cir. 2007) (internal citations and quotation marks omitted) (“Eleventh

26

Amendment immunity is an affirmative defense that must be raised early in the proceedings

27

to provide fair warning to the plaintiff”).

28

In his Response, Plaintiff argues only that Eleventh Amendment immunity is not

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1

absolute, and he cites to recognized exceptions in cases involving takings or tax refunds,

2

neither of which is applicable here. (Doc. 45 at 6.) Plaintiff requests that the Court reject

3

the State’s Eleventh Amendment Immunity defense on this basis and allow his claims

4

against the State to proceed. (Id. at 7.) As set forth above, the Court has no authority to

5

ignore the State’s constitutional immunity to suit absent a clear waiver of that immunity or

6

an unambiguous act of Congress, which is not present here. The Court will dismiss

7

Plaintiff’s claims against the State for lack of subject matter jurisdiction.

8

V.

Plaintiff’s Motion for Preliminary Injunction

9

To obtain a preliminary injunction, the moving party must show “that he is likely to

10

succeed on the merits, that he is likely to suffer irreparable harm in the absence of

11

preliminary relief, that the balance of equities tips in his favor, and that an injunction is in

12

the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The

13

moving party has the burden of proof on each element of the test. Envtl. Council of

14

Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).

15

Plaintiff seeks a preliminary injunction against the State and non-party State

16

Attorney General Kris Mayes, enjoining the State and Mayes “from enforcing judgments,

17

or criminally charging Plaintiff . . . until all claims are properly adjudicated” in Plaintiff’s

18

appeal of two state court judgments against him. (Doc. 37 at 4−5.)

19

Plaintiff’s Motion fails for several reasons. First, Plaintiff makes no showing on

20

any of the Winter factors. Although he provides headings for two of these factors:

21

“likelihood of success on the merits,” and “irreparable harm,” he merely refers to his

22

allegations in the SAC as a whole to argue he is likely to succeed on the merits, and he

23

only summarily lists generic harms, such as “deprivation of property, invasion of privacy,

24

financial instability, and ongoing threats to [his] safety and well-being,” without specifying

25

any current harms he faces absent immediate court intervention. (Doc. 37 at 3.) Such

26

conclusory assertions fail to meet Plaintiff’s burden of proof on either prong. Moreover,

27

because the Court must dismiss Plaintiff’s claims against the State for lack of subject-

28

matter jurisdiction, Plaintiff cannot succeed on the merits of these claims; nor does the

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1

Court have jurisdiction to order the State to provide any relief. See Zepeda v. INS, 753

2

F.2d 719, 727 (9th Cir. 1985) (“A federal court may issue an injunction if it has personal

3

jurisdiction over the parties and subject matter jurisdiction over the claim.”); see also

4

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110 (1969).

5

Finally, as the State argues, federal courts are barred from ordering relief related to

6

a plaintiff’s purported injuries from a state court judgment under both the Rooker-Feldman

7

doctrine and the Anti-Injunction Act, 28 U.S.C.A. § 2283. (Doc. 47 at 2−3.) The Rooker-

8

Feldman doctrine bars subject matter jurisdiction where, as here, “a federal plaintiff asserts

9

as a legal wrong an allegedly erroneous decision by a state court[] and seeks relief from a

10

state court judgment based on that decision.” Noel v. Hall, 341 F.3d 1148, 1156 (9th

11

Cir.2003). Additionally, under the Anti-Injunction Act, the Court “may not grant an

12

injunction to stay proceedings in a State court except as expressly authorized by Act of

13

Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its [own]

14

judgments.” 28 U.S.C.A. § 2283. This mandate “extends not only to injunctions affecting

15

pending proceedings, but also to injunctions against the execution or enforcement of state

16

judgments.” Henrichs v. Valley View Dev., 474 F.3d 609, 616 (9th Cir. 2007). Put simply,

17

“[a]n injunction may not be used to evade the dictates of the Act if the injunction effectively

18

blocks a state court judgment.” Id. Based on these mandates, the Court will summarily

19

deny Plaintiff’s Motion for Preliminary Injunction.

20

VI.

Remaining Claims

21

With the dismissal of the claims against both the City and State, Plaintiff’s only

22

remaining claims in this action are his § 1983 claims against the individually named

23

Defendants. The Court previously ordered Plaintiff to show cause by April 29, 2024, why

24

this action should not be dismissed as to those Defendants for failure to serve. (Doc. 56.)

25

On May 8, 2024, the Court discharged Plaintiff of that obligation after Plaintiff filed a

26

“Motion for Issuance of Summonses and Request for Rule 16 Case Management

27

Conference” (Doc. 57), which the Court construed as a response to the Order to Show

28

Cause. (Doc. 58.) In the same Order, the Court lifted the stay on discovery in effect at that

- 18 -

1

time to the extent that it permitted Plaintiff limited discovery to discover the service

2

addresses for the unserved Defendants, and it gave Plaintiff 60 days from the date of that

3

Order to obtain waivers of service from those Defendants or complete service on them.

4

(Id. at 2.) Plaintiff therefore has until July 8, 2024, to serve these Defendants or his claims

5

against them may also be dismissed.

6

IT IS ORDERED:

7

(1)

The reference to the Magistrate Judge is withdrawn as to Defendants City

8

of Chandler and State of Arizona’s Motions to Dismiss (Doc. 38, 41) and Plaintiff’s Motion

9

for Preliminary Injunction (Doc. 37).

10

(2)

The City of Chandler’s Motion to Dismiss (Doc. 38) is granted, and

11

Plaintiff’s claims against the City of Chandler are dismissed without prejudice pursuant to

12

Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.

13

(3)

The State of Arizona’s Motion to Dismiss (Doc. 41) is granted, and

14

Plaintiff’s claims against the State of Arizona are dismissed without prejudice pursuant to

15

Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction.

16

(4)

Plaintiff’s Motion for Preliminary Injunction (Doc. 37) is denied.

17

(5)

Plaintiff’s remaining claims in this action are his § 1983 claims against the

18

individually named Defendants. Plaintiff has until July 8, 2024, to serve these Defendants

19

or his claims against them may also be dismissed.

20

Dated this 5th day of June, 2024.

21
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