Palmer v. Savona et al

Filing 56

ORDER granting 48 Motion to Dismiss. IT IS FURTHER ORDERED that this case is dismissed with prejudice as to all Defendants. The Clerk of the Court shall enter judgment for Defendants accordingly. (See document for further details). Signed by Senior Judge James A Teilborg on 8/21/13. (LAD)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Peter Michael Palmer, Plaintiff, 10 11 ORDER v. 12 No. CV-10-08209-PCT-JAT Glenn A. Savona, individually and in his official capacity as Prescott City Prosecutor and Jane Doe Savona, husband and wife; Dan Murray, individually and in his official capacity as City of Prescott police department employee and Jane Doe Murray, husband and wife; Christine Keller, individually and in her official capacity as City of Prescott police department employee and Joseph Keller, wife and husband; Melody Thomas-Morgan (f.k.a. Melody Bodine), an individual; Mark M. Moore and Jane Doe Moore, individuals, husband and wife; City of Prescott, an Arizona municipal corporation, 13 14 15 16 17 18 19 20 21 22 Defendants. 23 Pending before the Court is Defendants Glenn Savona, Dan Murray, Christine 24 Keller, and the City of Prescott’s (the “Prescott Defendants”) Motion to Dismiss (Doc. 25 48). Plaintiff Peter Michael Palmer filed a Response (Doc. 54) and the Prescott 26 Defendants’ filed a Reply in Support of their Motion to Dismiss. (Doc. 55). The Court 27 now rules on the motion. 28 1 I. FACTUAL BACKGROUND1 2 On January 23, 2009, Plaintiff was served with an ex parte civil injunction (the 3 “injunction”) prohibiting Plaintiff from having any contact with Defendant Melody 4 Thomas-Morgan or her minor children, except through “attorneys, legal process, [or] 5 court hearings” (Doc. 48-1 at 23; Doc. 38 at 11). Plaintiff subsequently challenged the 6 injunction in the City of Prescott Justice Court (“Prescott Justice Court”) (Doc. 38 at 11). 7 On February 4, 2009, Plaintiff’s “attorney sua sponte” faxed a “motion on 8 [Plaintiff’s] behalf” to Defendant Thomas-Morgan (the “first fax”). (Doc. 38 at 12). 9 Plaintiff provided his attorney with the “fax number for [Defendant Thomas-Morgan] at 10 the church office where [Defendant Thomas-Morgan] worked.” (Doc. 38 at 12). As a 11 result of this first fax to Defendant Thomas-Morgan’s place of employment, on February 12 4, 2009, Defendant Dan Murray, a City of Prescott Police Department employee sent a 13 request to Defendant Glenn Savona, the Prescott City Prosecutor, to file a criminal 14 complaint against Plaintiff for violating the injunction. (Doc. 54 at 23). 15 16 On March 13, 2009, Plaintiff sent a second fax (the “second fax”) to Defendant Thomas-Morgan. (Doc. 38 at 14). The second fax was sent by Plaintiff personally. (Id.). 17 On March 19, 2009, Defendant Savona filed a complaint (the “criminal 18 complaint”) with the Prescott Justice Court charging Plaintiff with violating Arizona 19 Revised Statutes section 13-2810(A)(2) for “knowingly disobey[ing] or resist[ing] the 20 lawful order . . . of the [c]ourt.” (Doc. 48-1 at 11). The criminal complaint was signed by 21 Defendant Christine Keller, a City of Prescott Police Department employee. (Id.). In late 22 March, Plaintiff received a copy of the criminal complaint via mail. (Doc. 38 at 16). 23 On March 25, 2009, Judge Markham, the judge who enforced the injunction, 24 instructed Plaintiff that he “was not to mail copies of court paperwork to [his] adversary.” 25 (Doc. 38 at 17). 26 27 28 1 Unless otherwise noted, the facts set forth herein are as alleged by Plaintiff in his First Amended Complaint (Doc. 38). -2- 1 On June 23, 2009, Judge Markham held a pre-trial hearing regarding the criminal 2 complaint. (Doc. 48-1 at 7). At the hearing, Judge Markham ordered Plaintiff to “obey all 3 laws & have no contact with [Defendant Thomas-Morgan]” and “not to possess ANY 4 deadly weapons during the pendency of this case.” (Doc. 48-1 at 7) (emphasis in 5 original). In response to Plaintiff’s request for a change of judge, Judge Markham recused 6 himself and the case was transferred to Judge Ray. (Doc. 38 at 18). Judge Markham 7 informed Plaintiff at the hearing that “Judge Ray will set the trial date and notify all 8 parties.” (Doc. 48-1 at 7). 9 On July 2, 2009, Plaintiff filed a motion to modify the release conditions set by 10 Judge Markham on June 23, 2009 to allow Plaintiff to “possess weapons during the 11 pendency of the case.” (Doc. 48-1 at 13). On July 24, 2009, Judge Ray denied Plaintiff’s 12 motion to modify the release conditions. (Doc. 48-1 at 18). 13 On October 5, 2009, Plaintiff filed a Motion to Dismiss the charge listed in the 14 criminal complaint. (Doc. 48-1 at 27). Plaintiff argued that “Mr. Palmer[’s] actions were 15 specifically permitted by the order of the court and, even if the Court finds those actions 16 were not permitted, no evidence exists to show that Mr. Palmer knowingly violated the 17 order of this court.” (Doc. 48-1 at 27). On October 22, 2009, Judge Ray denied Plaintiff’s 18 Motion to Dismiss, ruling that “the [criminal] complaint is sufficient as a matter of law.” 19 (Doc. 55-1 at 7). 20 On October 30, 2009, Defendant Savona filed a Motion to Dismiss the criminal 21 complaint. On November 2, 2009, Judge Ray granted Defendant Savona’s motion to 22 dismiss. (Doc. 48-1 at 5). 23 On October 29, 2010, Plaintiff filed a complaint with this Court alleging violations 24 of Plaintiff’s civil rights. (Doc. 1). On January 2, 2013, Plaintiff filed an amended civil 25 complaint (the “civil complaint”). (Doc. 38). In the amended civil complaint, Plaintiff 26 alleges thirteen separate counts against Defendants, namely: (1) malicious prosecution 27 under state law, (2) violations of his Fourth Amendment rights, (3) abuse of process 28 -3- 1 under state law, (4) violations of his Fifth Amendment rights, (5) violations of his “right 2 to a fair trial” under the Fourteenth Amendment, (6) deprivation of his right to due 3 process as stated in Brady v. Maryland under the Fourteenth Amendment, (7) malicious 4 prosecution under 42 U.S.C. § 1983, (8) violation of his Second Amendment rights, (9) 5 conspiracy to deprive Plaintiff of his constitutional rights under 42 U.S.C. §1985(3), (10) 6 negligence in failure to prevent the conspiracy depriving Plaintiff of his constitutional 7 rights under 42 U.S.C. § 1986, (11) intentional infliction of emotional distress under state 8 law, (12) false light invasion of privacy under state law, and (13) negligent supervision 9 under state law. (Id.). On January 30, 2013, the Prescott Defendants filed a motion to dismiss for failure 10 11 to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 48). 12 II. LEGAL STANDARD 13 A. Motion to Dismiss 14 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must 15 meet the requirements of Rule 8. Rule 8(a)(2) requires a “short and plain statement of the 16 claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice 17 of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 18 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 19 Although a complaint attacked for failure to state a claim does not need detailed 20 factual allegations, the pleader’s obligation to provide the grounds for relief requires 21 “more than labels and conclusions, and a formulaic recitation of the elements of a cause 22 of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “On a 23 motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a 24 factual allegation.” Twombly, 550 U.S. at 555 (internal citations omitted). The factual 25 allegations of the complaint must be sufficient to raise a right to relief above a 26 speculative level. Id. 27 Rule 8’s pleading standard demands more than “an unadorned, the defendant- 28 -4- 1 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 2 Twombly, 550 U.S. at 555). A complaint that offers nothing more than blanket assertions 3 will not suffice. To survive a motion to dismiss, a complaint must contain sufficient 4 factual matter, which, if accepted as true, states a claim to relief that is “plausible on its 5 face.” Id. Facial plausibility exists if the pleader pleads factual content that allows the 6 court to draw the reasonable inference that the defendant is liable for the misconduct 7 alleged. Id. Plausibility does not equal “probability,” but plausibility requires more than a 8 sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads 9 facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line 10 between possibility and plausibility of entitlement to relief.’ Id. (quoting Twombly, 550 11 U.S. at 557). Because Plaintiff is proceeding pro se, the Court must construe his 12 Complaint liberally, even when evaluating it under the Iqbal standard. Johnson v. Lucent 13 Technologies Inc., 653 F.3d 1000, 1011 (9th Cir. 2001). However “[s]omething labeled a 14 complaint but written more as a press release, prolix in evidentiary detail, yet without 15 simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails 16 to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172, 17 1180 (9th Cir. 1996). “Prolix, confusing complaints . . . impose unfair burdens on 18 litigants and judges.” Id. at 1179. 19 In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the 20 facts alleged in a complaint in the light most favorable to the drafter of the complaint, and 21 the Court must accept all well-pleaded factual allegations as true. Shwarz v. United 22 States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept 23 as true a legal conclusion couched as a factual allegation, Papasan, 478 U.S. at 286, or an 24 allegation that contradicts facts that may be judicially noticed by the Court, Shwarz, 234 25 F.3d at 435. 26 B. Leave to Amend 27 Under previous Ninth Circuit Court of Appeals precedent, the court would sua 28 -5- 1 sponte grant leave to amend when granting a motion to dismiss, unless a pleading could 2 not be cured by the allegation of other facts. See Lacey v. Maricopa County, 693 F.3d 3 896, 927 (9th Cir. 2012) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). 4 However, this precedent has been called into question by the Court of Appeals, in light of 5 the recent changes to the Federal Rule of Civil Procedure 15, which now allows parties 6 twenty-one days from responsive pleadings and motions to dismiss to amend as of right. 7 See Lacey, 693 F.3d at 927. 8 Moreover, when a party properly seeks leave to amend, the Court considers the 9 following factors when deciding whether or not to grant leave to amend: (1) undue delay, 10 (2) bad faith, (3) prejudice to the opposing party, (4) futility of amendment, and (5) 11 whether plaintiff has previously amended his complaint. Western Shoshone Nat. Council 12 v. Molini, 951 F.2d 200, 204 (9th Cir. 1991). 13 previously filed a First Amended Complaint in response to a prior motion to dismiss. 14 This Court’s Order of January 10, 2013 informed Plaintiff that “[n]o further amendments 15 to the Complaint will be permitted unless Plaintiff first obtains leave of the Court. See 16 Fed. R. Civ. P. 15(a)(2).” (Doc. 44 at 2 n.1). Despite this warning, Plaintiff’s response to 17 Prescott Defendants’ motion to dismiss includes several attempts to improperly add or 18 otherwise amend several of his claims. (E.g., Doc. 54 at 10). The Court could properly 19 deny plaintiff’s attempts to amend in violation of both the local rules and this Court’s 20 previous order without further discussion. However, because the Court must generally 21 construe a pro se plaintiff’s complaint liberally, the Court will consider Plaintiff’s 22 additional allegations in the analysis of the motion to dismiss. 23 III. 24 25 In the present case, Plaintiff has ANALYSIS The Prescott Defendants move to dismiss all of the claims in Plaintiff’s complaint. (Doc. 48). 26 A. Malicious Prosecution under State Law (Count One) 27 In count one, Plaintiff alleges a claim of malicious prosecution against Defendants 28 -6- 1 Savona, Murray, Keller, Thomas-Morgan, and Moore. In Arizona, to succeed on a state 2 law claim of malicious prosecution, the Plaintiff must show that: (1) there was a criminal 3 prosecution, (2) that terminated in favor of the plaintiff, (3) the defendants were the 4 prosecutors, (4) the criminal prosecution was actuated by malice, (5) the prosecution was 5 without probable cause, and (6) the prosecution caused damages. Slade v. City of 6 Phoenix, 541 P.2d 550, 552 (Ariz. 1975). The existence of probable cause is a “complete 7 and absolute defense to an action for malicious prosecution.” Id. 8 The Prescott Defendants argue the state law claim of malicious prosecution should 9 be dismissed because Plaintiff has not alleged sufficient facts to show two of the elements 10 needed for a state law malicious prosecution claim, namely: malice and lack of probable 11 cause. Specifically, the Prescott Defendants argue that Plaintiff has not shown the 12 prosecution was actuated by malice and that Plaintiff’s version of the facts as alleged do 13 not demonstrate that Defendant Savona did not have probable cause at the time he filed 14 the criminal complaint. In response, Plaintiff argues that he has alleged facts that show 15 Defendant Savona lacked probable cause to file the criminal complaint and that 16 Defendants engaged in “wrongful and bad faith conduct” and, as a result, acted 17 maliciously. (Doc. 38 at 24-6) (Doc. 54 at 3-4). 18 As stated above, the existence of probable cause is an absolute defense to a state 19 law claim of malicious prosecution. Accordingly, the Court will consider first whether, 20 based on the facts alleged by Plaintiff, there was probable cause to initiate the criminal 21 proceedings. 22 1. Probable Cause 23 First, the Court notes that several of the other counts in Plaintiff’s complaint rely 24 on Plaintiff’s argument that Defendant Savona did not have probable cause when he filed 25 the criminal complaint. The existence or lack of probable cause is a question of law to be 26 determined by the Court. Slade v. City of Phoenix, 541 P.2d 550, 553 (Ariz. 1975). As a 27 result, Plaintiff’s statements regarding a “lack of probable cause” are legal conclusions 28 -7- 1 that the Court is not required to accept as true in deciding on a motion to dismiss. See 2 Twombly, 550 U.S. at 555 (“on a motion to dismiss, courts are not bound to accept as true 3 a legal conclusion couched as a factual allegation”). The Court must examine whether the 4 facts, as alleged, support Plaintiff’s legal conclusion. 5 To support his legal conclusion that Defendant Savona lacked probable cause to 6 file the criminal complaint, Plaintiff makes factual allegations relating to a police report, 7 Judge Ray’s August 5, 2009 Order, and the ultimate dismissal of the criminal action. 8 Plaintiff first argues that, in the police report, Defendant Savona “admit[s] that 9 [Plaintiff] did not have the mens rea to commit a crime” when Plaintiff sent the second 10 fax. (Doc. 54 at 2). Plaintiff admits the police report is essential to support his malicious 11 prosecution claim. (Id. at 2). Regarding the police report, Plaintiff states: 12 13 14 15 16 17 18 19 Savona ‘denied’ the second faxing complaint against me because I ‘had not been served with the previous complaint by the time of the second action.’ [Savona] further states [in the police report] that after I had been criminally charged for the first fax, ‘[Mr. Palmer] knows now the state will prosecute for a violation in the future.’ Thus he acknowledges I did not have the requisite mens rea for him to charge me for the second fax. Since I did not know it was a crime to fax the second time, I could not know it was a crime to fax the first. Logically, since I did not have the requisite mens rea for Savona to charge me for the second fax, I could not have had the requisite mens rea for him to charge me for the first. 20 21 (Doc. 38 at 24-5). Essentially, Plaintiff argues that, because Defendant Savona “knew” 22 Plaintiff was unaware he was violating a court order when Plaintiff sent the second fax, 23 “there is no way [Defendant Savona] could [have] believed [Plaintiff] was guilty” of 24 violating the court order by sending the first fax. (Doc. 54 at 3). As a result, Plaintiff 25 argues Defendant Savona lacked probable cause to bring the criminal complaint. (Id.). 26 Plaintiff provided this police report to the court as an attachment. (Doc. 31 at 18). 27 28 -8- 1 The Court takes judicial notice of this police report as a public record.2 The police report 2 states: 3 On 4/20/09 I received an action request from Prescott City Prosecutor Glenn Savona dated 4/16/09. The complaint was denied because the defendant had not been served with the previous complaint by the time of the second action. Defendant knows now the state will prosecute for a violation in the future. Case closed. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The Prescott Defendants request that the Court take judicial notice of public records from the criminal case against Plaintiff. (Doc. 48 at 2). In response, Plaintiff states that he “has no objection to the Court taking judicial notice of public records.” (Doc. 54 at 2). As stated above, the Court is generally not permitted to consider material beyond the complaint in ruling on a motion to dismiss. However, the Court may “take judicial notice of matters of public record” in ruling on a motion to dismiss. Five Points Hotel P’ship v. Pinsonneault, 835 F. Supp. 2d 753, 757 (D. Ariz. 2011). “Judicial notice is a tool which the court and the parties may use to establish certain facts without presenting evidence.” Von Grabe v. Sprint PCS, 312 F. Supp. 2d 1285, 1311 (S.D. Cal. 2003) (citation omitted). Pursuant to Rule 201 of the Federal Rules of Evidence, a district court may take judicial notice of facts that are not subject to reasonable dispute and either “generally known” in the community or “capable of accurate and ready determination by reference to sources whose accuracy cannot be reasonably questioned.” Fed. R. Evid. 201(b), (c). A district court may take judicial notice “at any stage of the proceeding[.]” Fed. R. Evid. 201(b)(2), (d); see also United States v. Zepeda, 705 F.3d 1052, 1064 (9th Cir. 2013). While a district court may not take judicial notice of a fact that is subject to reasonable dispute, the court may take judicial notice of undisputed matters of public record. See Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001). Here, Plaintiff states he has no objection to the Court taking judicial notice of the public records. (Doc. 54 at 2; Doc. 31 at 18). Because these facts are not disputed by the parties and are matters of public record, the Court will take judicial notice of the following documents: the police report (Doc. 31 at 18), Defendant Savona’s Motion to Dismiss and Order (Doc. 48-1 at 4-5), Minute Entry dated June 23, 2009 (Id. at 7), Summons dated March 3, 2009 (Id. at 10), Complaint dated March 3, 2009 (Id. at 11), Motion to Modify Release Conditions (Id. at 13), Reply to State’s Response to Motion to Modify Release Conditions (Id. at 15-17), Minute Entry dated July 24, 2009 (Id. at 18), Injunction Against Harassment (Id. at 23-24), Motion to Dismiss (Id. at 27-31), Action on Request for Criminal Complaint (Doc. 54 at 23), Ruling Re: Attorney-Client Privilege Waiver (Doc. 55-1 at 3-5), Minute Entry dated October 22, 2009 (Id. at 7). -9- 1 (Id.). Contrary to Plaintiff’s allegation that Defendant Savona wrote this police report, a 2 review of the document shows that it was written and signed by a police officer, 3 Defendant Murray. (Id.). As an initial matter, because this police report was not written 4 by Defendant Savona, it does not demonstrate Defendant Savona’s opinion or state of 5 mind. As a result, the police report referenced by Plaintiff does not address whether or 6 not Defendant Savona believed he had probable cause to file the criminal complaint, as 7 Plaintiff alleges. However, even if this document did show Defendant Savona’s opinion 8 or state of mind, it does not support Plaintiff’s conclusory allegation that Defendant 9 Savona did not have probable cause to file the criminal complaint. 10 Plaintiff also argues that Judge Ray’s August 5, 2009 Order (Doc. 55 at 17) 11 supports his argument that Defendant Savona lacked probable cause to initiate the 12 criminal proceedings against him. (Doc. 54 at 3). However, Judge Ray’s order addressed 13 a question of attorney-client privilege and did not evaluate whether Defendant Savona 14 had probable cause at the time the criminal complaint was filed. (Id.). Further, even if 15 Judge Ray’s order did conclude, as Plaintiff alleges (Id.), that “there was no crime by 16 faxing,” this does not change the probable cause analysis. As long as there was probable 17 cause at the time the initial criminal complaint was filed, “it is not material” that the 18 individual is ultimately found to be innocent. See Cullison v. City of Peoria, 584 P.2d 19 1156, 1159 (Ariz. 1978). When there is probable cause to initiate the action, the 20 prosecutor is “not required to conduct a trial before determining whether or not” to bring 21 the charges. Id. As a result, Judge Ray’s August 5, 2009 order does not support Plaintiff’s 22 conclusory allegation that Defendant Savona lacked probable cause to bring the 23 complaint. 24 Plaintiff also argues that the fact that Defendant Savona ultimately filed a motion 25 to dismiss the case shows there was no probable cause to initiate the proceedings. 26 However, “subsequent dismissal of the criminal proceedings does not in and of itself 27 indicate that there was no probable cause at the time the arrest was made or charges 28 - 10 - 1 filed.” Todd v. Melcher, 462 P.2d 850, 853 (Ariz. Ct. App. 1969). Accordingly, 2 Plaintiff’s factual allegations do not support his legal conclusion that Defendant Savona 3 lacked probable cause to file the criminal complaint. As a result, the Court will determine 4 whether, according to the facts alleged, probable cause existed to file the criminal 5 complaint. 6 In analyzing whether there was probable cause to initiate a criminal proceeding 7 under a state law claim for malicious prosecution, the Court considers whether there was 8 “a reasonable ground of suspicion, supported by circumstances sufficient to warrant an 9 ordinarily prudent man in believing the accused [was] guilty of the offense.” Gonzales v. 10 City of Phoenix, 52 P.3d 184, 187 (Ariz. 2002) (citing McClinton v. Rice, 265, P.2d 425, 11 431 (Ariz. 1953)). “Whether a given state of facts constitutes probable cause is always a 12 question of law to be determined by the court.” Slade v. City of Phoenix, 541 P.2d 550, 13 553 (Ariz. 1975). “The test generally applied is: upon the appearances presented to the 14 [Prosecutor], would a reasonably prudent man have instituted or continued the 15 proceeding?” Gonzales, 52 P.3d at 187. 16 In the present case, Defendant Savona filed a criminal complaint alleging Plaintiff 17 violated Arizona Revised Statutes section 13-2810(A)(2) by “fax[ing] or caus[ing] to be 18 faxed, papers to the workplace of the protected party without fulfilling requirements of 19 Rule 5(C) of the Arizona Rules of Civil Procedure[].” (Doc. 48-1 at 11). Arizona Revised 20 Statutes section 13-2810(A)(2) states that “a person commits interfering with judicial 21 proceedings if such person knowingly disobeys or resists the lawful order, process, or 22 other mandate of a court.” Thus, for probable cause to have existed in this case, there 23 must have been a reasonable ground of suspicion, supported by circumstances sufficient 24 to warrant a reasonable man to believe that Plaintiff was guilty of knowingly disobeying 25 a court order by faxing papers to the workplace of Defendant Thomas-Morgan without 26 fulfilling the requirements of Arizona Rule of Civil Procedure 5(C). 27 The term “knowingly” is defined in Arizona Revised Statutes section 13- 28 - 11 - 1 105(10)(a) as meaning “with respect to conduct or to a circumstance described by a 2 statute or defining an offense, that a person is aware or believes that the person’s conduct 3 is of that nature or that the circumstance exists. It does not require any knowledge of the 4 unlawfulness of the act or omission.” Ariz. Rev. Stat. § 13-105(10)(a) (emphasis added). 5 A person acts “knowingly” if they act “voluntarily and intentionally and not by accident 6 or mistake.” United States v. Jewell, 532 F.2d 697 (9th Cir. 1976). Additionally, even if a 7 person believes their actions are legal, that person can still act “knowingly” to violate 8 Arizona Revised Statutes section 13-105. See State v. Morse, 617 P.2d 1141, 1147 (Ariz. 9 1980). Thus, in order to believe Plaintiff “knowingly” disobeyed the court order, there 10 has to be a reasonable belief that Plaintiff acted voluntarily and Plaintiff’s actions were 11 not by accident, mistake, or inadvertence. Plaintiff’s belief that he thought his actions 12 were legal is irrelevant to the question of probable cause under Arizona Revised Statutes 13 section 13-105. 14 15 In this case, the Plaintiff’s only allegations regarding the lack of probable are as follows: 16 The injunction against Plaintiff was in effect at the time of the first fax. (Doc. 48-1 17 at 23). The injunction stated “[Mr. Palmer] shall have no contact with [Defendant 18 Thomas-Morgan] except through attorneys, legal process, [and] court hearings.” (Id.). 19 The injunction also stated “[Mr. Palmer] shall not go to or near [Defendant Thomas- 20 Morgan’s] or other Protected Person’s Workplace.” (Id. at 24). On January 23, 2009, 21 Plaintiff was “served” with the injunction. Plaintiff was aware of the injunction against 22 him when the first fax was sent to Defendant Thomas-Morgan (Doc. 38 at 13). 23 On February 4, 2009, Plaintiff, through an attorney, sent a document to Defendant 24 Thomas-Morgan at her place of work. The document was Plaintiff’s “first emergency 25 motion” in the case involving the injunction. (Doc. 38 at 13). Plaintiff admits this fax 26 “could not be considered service” since he also mailed a copy of the motion to Defendant 27 Thomas-Morgan as service. (Doc. 38 at 17). Defendant Thomas-Morgan did not agree or 28 - 12 - 1 consent to service by facsimile transmission. (Doc. 55-1 at 5). 2 On February 4, 2009, “immediately after [receiving] the first fax,” Defendant 3 Thomas-Morgan informed Defendant Murray that Plaintiff had violated the injunction. 4 (Doc. 38 at 14). Defendant Murray “instantly generated” a police report and forwarded it 5 to Defendant Savona “for charging.” (Id. at 14-15). After receiving the police report from 6 Defendant Murray, Defendant Savona requested “info on the fax – who received, when, 7 where – how addressed cover sheet” from Defendant Murray. (Doc. 54 at 23). In that 8 request Defendant Savona further stated “Rule 5 of Rules of Civil Procedure indicates 9 delivery by facsimile is not waived without court order or agreement of the parties.” (Id.). 10 On March 19, 2009, Defendant Savona filed a criminal complaint against Plaintiff 11 for knowingly violating a court order under Arizona Revised Statutes section 13- 12 2810(A)(2). (Doc. 38 at 16). 13 Based on the facts as alleged by Plaintiff, there was a reasonable ground of 14 suspicion, supported by circumstances sufficient to warrant a reasonable man to believe 15 that Plaintiff was guilty of violating Arizona Revised Statutes section 13-105. 16 Accordingly, as alleged by Plaintiff, Defendant Savona had probable cause to initiate the 17 criminal proceedings against Plaintiff. Therefore, Plaintiff has failed to state a claim upon 18 which relief can be granted for malicious prosecution. 19 2. Malice 20 As stated above, the existence of probable cause is an absolute defense to a state 21 law claim of malicious prosecution. Slade, 541 P.2d at 553. Because the Court has found, 22 based on the facts alleged by Plaintiff, that there was probable cause at the time the 23 criminal complaint was filed, the Court need not reach Defendants’ alternative argument 24 that Plaintiff did not allege facts to support a finding of malice. 25 26 Accordingly, Plaintiff has failed to state a claim upon which relief can be granted and count one of malicious prosecution under state law is dismissed. 27 28 - 13 - 1 B. Abuse of Process under State Law (Count Three) 2 In count three of Plaintiff’s Amended Complaint, Plaintiff alleges that Defendants 3 Savona, Keller, and Murray “knowingly and willfully acted to use the judicial process for 4 an ulterior purpose not proper in the regular conduct of proceedings.” (Doc. 38 at 27) 5 (Doc. 54 at 10). Plaintiff argues that the “overarching purpose of the ‘legal process’ is to 6 ‘establish justice’” and, here, the Defendants did not use the process to “promote justice” 7 because they “presented fabricated evidence to the court.” (Doc. 54 at 11). Plaintiff 8 claims that Defendant’s “ulterior motive was to stop [Plaintiff] from faxing motions as a 9 favor to defendant Thomas-Morgan.” (Id.). 10 Under Arizona law, abuse of process requires “(1) a willful act in the use of 11 judicial process (2) for an ulterior purpose not proper with the regular conduct of the 12 proceeding.” Houston v. Arizona State Bd. of Educ., No. CV-10-8160-PHX-GMS, 2012 13 WL 466474, at *7 (D. Ariz. Feb. 14, 2012) (citing Nienstedt v. Wetzel, 651 P.2d 876, 881 14 (Ariz. App. 1982)). “An ‘ulterior purpose’ requires showing that the process is ‘used 15 primarily to accomplish a purpose for which the process was not designed.’” Id. 16 However, to state a claim for abuse of process, it is not enough to allege a defendant, who 17 legitimately used the process for its authorized purposes, had “bad intentions . . . an 18 incidental motive of spite or an ulterior purpose of benefit to the defendant.” Id. A 19 plaintiff alleging an abuse of process claim must allege “that the defendant used a court 20 process for a primarily improper purpose, [and] that, in using the court process, the 21 defendant took an action that could not logically be explained without reference to the 22 defendant’s improper motives.” See Crackel v. Allstate Ins. Co., 92 P.3d 882, 889 (Ariz. 23 App. 2004). 24 Plaintiff alleges that it was an abuse of process for a criminal complaint to be filed 25 against him based on his fax to Defendant Thomas-Morgan. As determined above, based 26 on the facts alleged by Plaintiff, Defendant Savona had probable cause to believe Plaintiff 27 knowingly violated a court order. Based on this reasonable belief of probable cause, 28 - 14 - 1 Defendant Savona filed a criminal complaint against Plaintiff. These allegations are 2 insufficient to state a claim for abuse of process. See Morn v. City of Phoenix, 730 P.2d 3 873, 877 (Ariz. App. 1986) (explaining that simply initiating a lawsuit cannot, on its own, 4 amount to abuse of process). 5 Furthermore, according to the facts alleged by Plaintiff, Defendant’s “ulterior 6 motive” was to prevent Plaintiff from faxing motions “as a favor” to Defendant Thomas- 7 Morgan. (Doc. 54 at 11). First, Plaintiff has alleged no facts that support his statement 8 that the criminal complaint was filed only “as a favor” for Defendant Thomas-Morgan. 9 Even assuming, arguendo, that Plaintiff’s unsupported statement is true, “an incidental 10 motive of spite or an ulterior purpose” is insufficient to support a claim for abuse of 11 process. Arizona State Bd. of Educ., 2012 WL 466474, at *7. Second, the fact that 12 Defendant Savona intended to prevent Plaintiff from faxing motions to Defendant 13 Thomas-Morgan is not an improper or ulterior motive. In fact, the criminal complaint 14 was filed to pursue criminal charges because Plaintiff sent a fax to Defendant Thomas- 15 Morgan, which based on the facts as alleged by Plaintiff, Defendant Savona reasonably 16 believed was a violation of the civil injunction.3 It is not improper that, by filing the 17 criminal complaint, Defendants intended to prevent Plaintiff from sending future faxes to 18 Defendant Thomas-Morgan. The facts alleged by Plaintiff fail to state an improper or 19 ulterior purpose and, as a result, Plaintiff has failed to state a claim for abuse of process. 20 Accordingly, Plaintiff count three of Plaintiff’s Amended Complaint is dismissed. 21 22 23 24 25 26 27 28 3 The Injunction Against Harassment States, “WARNINGS TO DEFENDANT: This Injunction shall be enforced, even without registration, by the courts of any state.” (Doc 48-1). See Arizona Revised Statutes section 13-3602(M) (“Criminal violations of an order issued pursuant to this section shall be referred to an appropriate law enforcement agency. The law enforcement agency shall request that a prosecutorial agency file the appropriate charges. A violation of an order of protection shall not be adjudicated by a municipal or justice court unless a complaint has been filed.”) - 15 - 1 C. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Intentional Infliction of Emotional Distress under State Law (Count Eleven) In count eleven, Plaintiff alleges that the actions of Defendants Savona, Murray, Thomas-Morgan, Moore, and Keller, were extreme, outrageous, intentional, reckless, and “intended to harm – and did harm – Plaintiff.” (Doc. 38 at 32). Plaintiff argues that “it is self-evident that it is extreme and outrageous conduct when a Prosecutor, with malice and aforethought, arbitrarily and capriciously prosecutes someone whom he knows did not commit a crime.” (Doc. 54 at 18). In Arizona a party is liable for intentional infliction of emotional distress when, that party, “by extreme and outrageous conduct, intentionally or recklessly causes severe emotional distress to another.” Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 785 (Ariz. 1989). “Extreme and outrageous conduct requires that plaintiff prove defendant’s conduct exceeded all bounds usually tolerated by decent society . . . and [caused] mental distress of a very serious kind.” Id. (internal citations omitted). Because the Court has determined above that, based on the facts as alleged by Plaintiff, Defendant Savona did have probable cause to file the criminal complaint against Plaintiff, Plaintiff’s allegation that Defendant Savona acted “with malice and aforethought” fails to state a claim for intentional infliction of emotional distress. (Doc. 54 at 18). In regards to the other named defendants for this claim, the facts alleged by Plaintiff do not support Plaintiff’s claim that Defendants actions were “extreme and outrageous.” The facts alleged by Plaintiff fail to state a claim for intentional infliction of emotional distress against Defendants Savona, Murray, Thomas-Morgan, Moore, and Keller.4 4 Even if the Court were to accept Plaintiff’s legal conclusion that Defendant Savona lacked probable cause as true, Plaintiff has still failed to state a claim upon which relief can be granted for intentional infliction of emotional distress. The conduct that Plaintiff alleges is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Ford v. Revlon, Inc., 734 P.2d 580, 585 (Ariz. - 16 - 1 2 Accordingly, Plaintiff has failed to state a claim upon which relief can be granted and count eleven for intentional infliction of emotional distress is dismissed. 3 D. False Light Invasion of Privacy under State Law (Count Twelve) 4 In count twelve, Plaintiff alleges that Defendants Savona, Murray, Thomas- 5 Morgan, Moore, and Keller, made statements that they “knew (or reasonably should have 6 known)” were “untrue and intended to misrepresent Plaintiff’s character, history, 7 activities, and beliefs” and these “false and/or misleading statements were made public 8 by way of court record.” (Doc. 38 at 32). Specifically, Plaintiff argues that the criminal 9 complaint which “falsely charged [him] as a criminal” was “publicized” and represented 10 Plaintiff “in a false light that a reasonable person would find highly offensive.” (Doc. 54 11 at 19-20).5 12 Under Arizona law, the claim of false light invasion of privacy is intended to 13 protect against the conduct of knowingly or recklessly publishing false information or 14 innuendo that a “reasonable person” would find “highly offensive.” Godbehere, 783 P.2d 15 at 786. To recover for false light invasion of privacy, a plaintiff must allege facts showing 16 the defendant published information with knowledge of the falsity or with reckless 17 disregard for the truth. Id. “The Arizona Supreme Court has made clear, however, that the 18 standards for proving false light invasion of privacy are quite stringent by themselves and 19 that the tort protects against a narrow class of wrongful conduct that falls just short of 20 outrage.” Lemon v. Harlem Globetrotters Intern., Inc., 437 F.Supp.2d 1089, 1108 (D. 21 Ariz. 2006). The publication “must involve a major misrepresentation of [the plaintiff’s] 22 character, history, activities, or beliefs, not merely minor or unimportant inaccuracies.” 23 Id. at 787. 24 25 26 27 28 Plaintiff’s argument that Defendants acted “with knowledge of the falsity or with 1987) (internal citation omitted). 5 Plaintiff offers no allegations as to how Defendants Savona, Murray, ThomasMorgan, Moore, and Keller each made false statements in the criminal complaint that was filed against him. - 17 - 1 reckless disregard for the truth” in the course of filing and pursuing the criminal 2 complaint is entirely based on Plaintiff’s argument that Defendant Savona lacked 3 probable cause. As a result, because the Court has found there was probable cause based 4 on Plaintiff’s allegations, this argument is precluded. Id. at 786. 5 Further, Plaintiff’s argument that he is placed in a “false light” because the 6 criminal complaint creates a public court record that represents him as a “criminal” does 7 not support a claim for false light invasion of privacy. Arizona favors an “open 8 government and informed citizenry” and “records in all courts . . . are presumed to be 9 open to any member of the public.” Ariz. R. Sup. Ct. 123(c)(1). Other than documents 10 listed in Arizona Rule of Superior Court 123(d)(2)(A), adult criminal case files are open 11 to the public unless otherwise prohibited by law or sealed by court order. Ariz. R. Sup. 12 Ct. 123(d)(2)(C). Despite Plaintiff’s arguments to the contrary, official court records open 13 to public inspection cannot support an action for invasion of privacy. See Restatement 14 (Second) of Torts § 652D, cmt. d (1977).6 Because the criminal complaint in this case is 15 considered a public record and is open to public inspection, Plaintiff has failed to state a 16 claim upon which relief can be granted and count twelve of false light invasion of privacy 17 is dismissed. 18 E. 19 In count thirteen, Plaintiff alleges that the City of Prescott is liable on a theory of 20 21 22 23 24 25 26 27 Negligent Supervision under State Law (Count Thirteen) 6 See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975) (“States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.”); Baker v. Burlington Northern, Inc., 587 P.2d 829, 822-23 (denying false light claim when publication was an accurate recitation of public court records); Coverstone v. Davies, 239 P.2d 876, 880 (Cal. 1952) (“The facts concerning the arrest and prosecution of those charged with violation of the law are matters of general public interest. Therefore the publication of details of such official actions cannot, in the absence of defamatory statements, be actionable.”); Hubbard v. Journal Pub. Co., 368 P.2d 147, 148 (N.M. 1962) (“the right to privacy is not invaded by any publication made in a court of justice”) (quoting Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890)). 28 - 18 - 1 negligent supervision. (Doc. 38 at 32-33). Plaintiff argues that the City of Prescott has no 2 “oversight protocol” of Defendants Savona, Murray, and Keller, and, as a result, the City 3 of Prescott is liable for the actions of Defendants Savona, Murray, and Keller. (Doc. 54 at 4 20). 5 In order to state a claim of negligent supervision under state law, a plaintiff must 6 allege that (1) the employer knew or should have known that (2) an employee was not 7 competent to perform his or her job duties and (3) the employer’s failure to supervise that 8 employee caused injury to the plaintiff. Humana Hosp. Desert Valley v. Superior Court 9 of Arizona In and For Maricopa County, 742 P.2d 1382 (Ariz. App. 1987). Additionally, 10 in order for an employer to be held liable for negligent supervision, a court must first find 11 that an employee actually committed a tort. Kuhen v. Stanley, 91 P.3d 346 (Ariz. App. 12 2004). 13 Plaintiff has failed to state a tort claim against any employee of the City of 14 Prescott. Because Plaintiff has failed to state a claim for a tort action against any of the 15 City of Prescott’s employees in their individual capacity, Plaintiff has failed to state a 16 claim for negligent supervision against the City of Prescott. 17 Accordingly, count thirteen of negligent supervision under state law is dismissed. 18 F. 19 Plaintiff has alleged five claims pursuant to 42 U.S.C. § 1983 claims against 20 certain Defendants. Section 1983 is not a source of substantive rights on its own. Graham 21 v. Connor, 490 U.S. 386, 393 (1989). Section 1983 provides a cause of action against 22 persons acting under color of state law who have violated rights guaranteed by the United 23 States Constitution and federal law. 42 U.S.C. § 1983. To state a claim under § 1983, a 24 plaintiff must allege that: (1) the conduct about which he complains was committed by a 25 person acting under the color of state law, and (2) the conduct deprived him of a federal 26 constitutional or statutory right. Wood v. Ostrander, 879 F.2d 583, 587 (9th Cir. 1989). A 27 plaintiff must also allege that he suffered a specific injury as a result of the conduct of a 42 U.S.C. § 1983 Claims 28 - 19 - 1 particular defendant and he must allege an affirmative link between that injury and the 2 conduct of the defendant. Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 1. 3 Second Amendment (Count Eight) 4 In count eight, Plaintiff alleges that Defendant Savona is liable for a violation of 5 Plaintiff’s Second Amendment rights. Plaintiff argues that his Second Amendment rights 6 were violated when Judge Markham set a temporary release condition that prohibited 7 Plaintiff from possessing any deadly weapons during the pendency of the criminal case. 8 (Doc. 38 at 22, Doc 48-1 at 13). Plaintiff further argues that Defendant Savona is liable 9 for a violation of Plaintiff’s Second Amendment rights because he opposed Plaintiff’s 10 motion to modify the release conditions. 11 Taking the facts alleged by Plaintiff as true for purposes of the motion to dismiss, 12 Plaintiff has failed to state a claim for a violation of his Second Amendment rights. 13 Plaintiff alleges his Second Amendment rights were violated by the release conditions as 14 set by Judge Markham. Plaintiff has not named Judge Markham as a defendant in this 15 case and, as a result, cannot state a claim against him. Moreover, any amendment to name 16 Judge Markham as a defendant would be futile because Judge Markham is entitled to 17 absolute judicial immunity to all actions taken in his judicial capacity. See Forrester v. 18 White, 484 U.S. 219 (1988); Mireles v. Waco, 502 U.S. 9 (1991); Cleavinger v. Saxner, 19 474 U.S. 193 (1985); Stump v. Sparkman, 435 U.S. 349 (1978); Pierson v. Ray, 386 U.S. 20 547 (1967). 21 Plaintiff attempts to argue that Defendant Savona’s motion practice equates to 22 Judge Markham’s order. (Doc. 38 at 22). Parties’ arguments and motions are not an order 23 of the court and Defendant Savona is not the appropriate defendant. Further, even if 24 Defendant Savona were the appropriately-named state actor, Plaintiff cannot state a claim 25 against him because prosecutors are entitled to prosecutorial immunity “when performing 26 the traditional functions of an advocate.” Genzler v. Longanbach, 410 F.3d 630, 636 (9th 27 Cir. 2005) (“A prosecutor is protected by absolute immunity from liability for damages 28 - 20 - 1 under § 1983 ‘when performing the traditional functions of an advocate’ [citation 2 omitted].”). 3 Based on the foregoing, Plaintiff has failed to state a claim against Judge 4 Markham or Defendant Savona arising from Judge Markham’s order. Accordingly, count 5 eight is dismissed. 2. 6 Fourth Amendment (Count Two) 7 In count two, Plaintiff alleges that Defendants Savona, Murray, Keller, Thomas- 8 Morgan, and Moore violated his Fourth Amendment rights. Plaintiff alleges that 9 Defendants caused Plaintiff to be “unreasonabl[y] seized initially and continuously for 10 more than five months” by filing the criminal complaint and “causing to be issued” a 11 “[c]ourt [s]ummons against Plaintiff ordering Plaintiff to stop and appear on certain days 12 before the Prescott court under threat of conventional arrest.” (Doc 38 at 26).7 13 In the Motion to Dismiss, the Prescott Defendants argue that Plaintiff has failed to 14 allege that Plaintiff was “seized” under the Fourth Amendment. The Prescott Defendants 15 specifically argue that “an appearance on a mere summons, subject to de minimus release 16 restrictions, is not an unreasonable seizure.” (Doc. 55 at 5). 17 To state a claim for a Fourth Amendment violation a party must allege first that 18 the challenged conduct constitutes a search or seizure. United States v. Attson, 900 F.2d 19 1427, 1429-30 (9th Cir. 1990). A person is seized under the Fourth Amendment when 20 “by means of physical force or show of authority,” his freedom of movement is 21 terminated or restrained. Brenlin v. California, 551 U.S. 249, 254 (2007). The Ninth 22 Circuit Court of Appeals has held that a person is not seized under the Fourth 23 7 24 25 26 27 Plaintiff also incorporates his previous argument that Defendant Savona lacked probable cause to file the criminal complaint and, as a result “the seizure was unreasonable” under the Fourth Amendment. (Doc. 54 at 6). However, because the Court has determined above that probable cause did exist to file the complaint based on the facts alleged by Plaintiff, this argument fails to state a claim for a Fourth Amendment violation. 28 - 21 - 1 Amendment when they are required, by the conditions of a pretrial release, to “obtain 2 permission of the court before leaving the state and [to] make court appearances.” Karam 3 v. City of Burbank, 352 F.3d 1188, 1193 (9th Cir. 2003). The court in Karam also noted 4 that, 5 6 7 8 9 10 Cases decided by our sister circuits in which they have concluded there was a seizure incident to pre-trial release have involved conditions significantly more restrictive than those in the present case. See, e.g. Johnson v. City of Cincinnati, 310 F.3d 484, 493 (6th Cir. 2002) (“[I]n each of the cases addressed by our sister circuits, the government not only curtailed the suspect’s right to interstate travel, it also imposed additional restrictions. . . , such as obligations to post bond, attend court hearings, and contact pretrial services.”). 11 12 Karam, 352 F.3d at 1193. 13 According to the facts alleged by Plaintiff, the conditions imposed by the 14 summons required “Plaintiff to stop and appear on certain days before the Prescott court 15 under threat of conventional arrest.” (Doc. 38 at 26). Plaintiff states that the conditions 16 did not expressly restrict him from leaving the state. (Doc. 54 at 7). As a result, according 17 to the facts alleged by Plaintiff, Plaintiff was not seized for purposes of the Fourth 18 Amendment. Because Plaintiff was never “seized” as contemplated by the Fourth 19 Amendment, Plaintiff has failed to state a claim for a Fourth Amendment violation. 20 21 Accordingly, count two of violations under the Fourth Amendment is dismissed. 3. Fifth Amendment (Count Four) 22 Plaintiff concedes in his First Amended Response to Defendant’s Motion to 23 Dismiss that this count should be dismissed. (Doc. 54 at 7) (“Plaintiff withdraws this 24 Count as it seems redundant and best covered in Count Five.”). 25 26 27 28 Accordingly, count five is dismissed. 4. Fourteenth Amendment Malicious Prosecution Claim (Counts Five and Seven) Plaintiff alleges § 1983 claims against Defendants Murray, Savona, Keller, - 22 - 1 Thomas-Morgan, and Moore based on malicious prosecution under the Fourteenth 2 Amendment in both counts five and seven. Because these claims appear to be based on 3 the same legal argument, the Court will consider these two counts together. Plaintiff’s 4 argument on claims is based on his previous argument in count one that Defendant 5 Savona lacked probable cause to file the criminal complaint. 6 In order to state a claim of malicious prosecution under § 1983, a plaintiff must 7 allege that the defendants prosecuted plaintiff “with malice and without probable cause, 8 and that they did so for the purpose of denying [plaintiff] equal protection or another 9 specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180 (9th Cir. 1995) 10 (emphasis added). As determined above in count one, Plaintiff has failed to allege facts 11 that, if accepted as true, state a claim for malicious prosecution because Plaintiff has 12 failed to plausibly allege lack of probable cause. Accordingly, counts five and seven are dismissed. 13 5. 14 Fourteenth Amendment Brady Claim (Count Six) 15 In count six, Plaintiff alleges that Defendants Murray and Savona deprived 16 Plaintiff of his Fourteenth Amendment right as stated in Brady v. Maryland because 17 Defendants “[withheld] exculpatory evidence.” (Doc. 38 at 28). According to Plaintiff, 18 the “exculpatory evidence” is the police report written by Defendant Murray that the 19 Court discussed above when analyzing count one of Plaintiff’s Amended Complaint. 20 (Id.). 21 In response, the Prescott Defendants argue that Plaintiff cannot state a § 1983 22 Brady claim because there was no trial, Plaintiff was not found guilty, and the charges 23 were ultimately dismissed. (Doc. 48 at 14). The Prescott Defendants also argue that the 24 alleged exculpatory evidence, the police report, “was neither exculpatory nor material 25 and therefore does not support a Brady claim.” (Id. at 15). 26 Under Brady v. Maryland, 373 U.S. 83 (1963), the government has a 27 constitutional duty to disclose material exculpatory evidence to a criminal defendant 28 - 23 - 1 before trial. Exculpatory evidence is material “if there is a reasonable probability that, 2 had the evidence been disclosed to the defense, the result of the proceeding would have 3 been different.” United States v. Bagley, 473 U.S. 667, 682-84 (1985). “A successful 4 Brady claim requires three findings: (1) the evidence at issue is favorable, either because 5 it is exculpatory or because it is impeaching; (2) such evidence was suppressed by the 6 prosecution, either willfully or inadvertently; and (3) prejudice resulted.” Atwood v. 7 Schriro, 489 F. Supp. 2d 982, 1013 (D. Ariz. 2007) (citing Strickler v. Greene, 527 U.S. 8 263, 281-82 (1999)). 9 The third requirement of “prejudice” is an essential element to a Brady claim. 10 Buckheit v. Dennis, No. 3:09-cv-05000-JCS, 2013 WL 57716, at *10 (N.D. Cal. Jan. 3 11 2013). The court in Buckheit considered the third requirement of a Brady claim in a case 12 where, similar to the present case, the plaintiff was not convicted. The Buckheit court’s 13 thorough analysis and discussion applies to the facts in the present case: 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Plaintiff was never convicted, nor was he ever charged by the County. Although the Ninth Circuit has not explicitly held that a conviction is a prerequisite for a Brady claim, see Smith v. Almada, 640 F.3d 931 (9th Cir. 2011), three circuit courts have. See Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999) (“Regardless of any misconduct by government agents before or during trial, a defendant who is acquitted cannot be said to have been deprived of the right to a fair trial.”); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998) (“Plaintiff was never convicted and, therefore, did not suffer the effects of an unfair trial. As such, the facts of this case do not implicate the protections of Brady.”); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988) (holding that “[b]ecause the underlying criminal proceeding terminated in appellant’s favor, he has not been injured by the act of wrongful suppression of exculpatory evidence” and thus cannot maintain Brady-based § 1983 claim). In Smith v. Almada, the Ninth Circuit declined to decide whether a § 1983 plaintiff was barred from asserting a Brady claim after he spent five months in jail but was ultimately acquitted at a second trial. See Almada, 640 F.3d at 941-42. 28 - 24 - 1 2013 WL 57716 at *10. Unlike Buckheit, where the plaintiff was found factually 2 innocent, in the present case the criminal complaint against Plaintiff was dismissed. 3 However, this distinction does not change the reasoning used by the Buckheit court. 4 Assuming, for purposes of this order, that the police report is considered Brady material, 5 Plaintiff cannot state a claim under Brady because he has not, and cannot, allege facts 6 that would show he was prejudiced by any alleged withholding of exculpatory evidence. 7 Moreover, “[Brady does not] impose[ ] a general requirement of pretrial disclosure 8 of exculpatory material. Due process, it is said, requires only that disclosure of 9 exculpatory material be made in sufficient time to permit defendant to make effective use 10 of that material.” LaMere v. Risley, 827 F.2d 622, 625 (9th Cir. 1987) (alterations in 11 original) (internal citation omitted); see United States v. Dupuy, 760 F.2d 1492, 1501 (9th 12 Cir. 1985) (holding that disclosing Brady material a week after trial began was 13 permissible where the defendant “had ample opportunity to take advantage of the 14 information provided”). Here, even if the police report were Brady material, Plaintiff has 15 suffered no prejudice from Defendants’ alleged failure to disclose the police report to him 16 prior to the dismissal of the case. Plaintiff has not alleged how he was deprived of 17 effectively using the police report prior to the dismissal. Accordingly, Plaintiff has failed 18 to state a claim upon which relief can be granted based on a Brady violation. 19 Accordingly, count six of Plaintiff’s § 1983 Brady claim is dismissed. 20 K. 21 Conspiracy and “Neglect to Prevent” under 42 U.S.C. §§ 1985(3) & 1986 (Counts Nine and Ten) 22 Plaintiff concedes that counts nine and ten are related and the failure to state a 23 claim under § 1985(3) also results in dismissal of Plaintiff’s § 1986 claim. (Doc. 54 at 17) 24 (“Plaintiff agrees that Counts 9 & 10 are related, and if the first fails, so does the 25 second.”). Accordingly, the Court will first consider Plaintiff’s § 1985(3) claim. Plaintiff 26 generally alleges that Defendants “conspired against [Plaintiff]” in an effort to “civilly 27 prosecute [Plaintiff].” 28 - 25 - 1 Four elements are required to state a cause of action under § 1985(3). Sever v. 2 Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). A plaintiff must allege: “(1) a 3 conspiracy; (2) for the purposes of depriving, either directly or indirectly, any person or 4 class of persons of the equal protection of the laws, or of equal privileges and immunities 5 under the laws; and (3) an act in furtherance of this conspiracy; (4) whereby a person is 6 either injured in his person or property or deprived of any right or privilege of a citizen of 7 the United States.” Id. To state a claim for conspiracy, a party must allege specific facts 8 that state “overt acts done in furtherance of the conspiracy.” Sanchez v. City of Santa 9 Ana, 936 F.2d 1027, 1039 (9th Cir. 1990). Conclusory statements, alone, unsupported by 10 “specific acts showing an agreement or meeting of the minds to deprive plaintiffs of their 11 constitutional rights” are insufficient to state a claim under § 1985(3). Comm. for 12 Immigrant Rights of Sonoma Cnty. v. Cnty. Of Sonoma, 644 F. Supp. 2d 1177, 1203 13 (N.D. Cal. 2009). 14 Plaintiff generally alleges that Defendants Savona, Murray, Thomas-Morgan, 15 Moore, and Keller communicated with one another on various occasions and discussed 16 the complaint against Plaintiff. Plaintiff alleges no specific facts to support the 17 conclusory allegation that Defendants were acting in conspiracy to deprive Plaintiff of his 18 constitutional rights. Further, even assuming, arguendo, that Plaintiff has alleged enough 19 facts to state a conspiracy, Plaintiff still fails to state a claim upon which relief can be 20 granted for conspiracy because as discussed above Plaintiff has failed to state a claim for 21 a violation of any of Plaintiff’s constitutional rights. Accordingly, Plaintiff counts nine and ten are dismissed. 22 23 IV. THE REMAINING DEFENDANTS 24 On October 29, 2010, Plaintiff filed his original complaint in this case against 25 Defendant Savona and “Jane Doe” Savona, husband and wife. (Doc. 1). Plaintiff did not 26 timely return the service packets for the Marshals to serve Defendant Savona with the 27 Complaint and the Court set a show cause hearing requiring Plaintiff to appear and show 28 - 26 - 1 cause why the case should not be dismissed for failure to prosecute and failure to comply 2 with the Court’s Orders. (Doc. 9). When Plaintiff did not appear for the show cause 3 hearing, the Court dismissed the case without prejudice. The Court of Appeals reversed 4 this Court’s decision on the basis that the Court did not show its work in analyzing the 5 factors that are to “guide” the court’s decision as to whether to dismiss for failure to 6 prosecute. (Doc. 18-2). In its Order, the Court of Appeals did not address the fact that 7 Plaintiff failed to comply with two Orders of the Court, which is an independent basis for 8 dismissal. (See id.). The Court of Appeals likewise did not address the fact that Plaintiff 9 never made a showing of good cause for his failure to return the service packets within 10 the time set by the Court’s Order.8 (See id.). 11 After the case was remanded, on November 21, 2012, Plaintiff filed what he titled 12 his “Zeroth Amended Complaint,” naming the following Defendants: Glenn A. Savona 13 and Jane Doe Savona, husband and wife, Dan Murray and Jane Doe Murray, husband and 14 wife, Christine Keller and Joseph Keller, wife and husband, Melody Thomas-Morgan, 15 and Mark M. Moore and Jane Doe Moore, husband and wife. (Doc. 20). Plaintiff filed 16 Proofs of Service of the “Zeroth Amended Complaint” with the Court for the following 17 Defendants: Dan Murray, Jane Doe Murray, the City of Prescott, Christine Keller, John 18 Doe Keller, Glenn Savona, Jane Doe Savona. On January 2, 2013, Plaintiff filed a First 19 Amended Complaint, naming the same Defendants as he named in his “Zeroth Amended 20 Complaint.” (Doc. 38). There is no evidence in the Record that Plaintiff has ever served 21 Defendants Melody Thomas-Morgan and/or Mark M. Moore and Jane Doe Moore with 22 any of his complaints. 23 24 25 26 27 28 8 Accord Federal Rule of Civil Procedure 4(m) (“If a defendant is not served within 120 days after the complaint is filed, the court—on motion or on its own after notice to plaintiff—must dismiss the action without prejudice against that defendant . . . . But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”) (emphasis added). - 27 - 1 Plaintiff failed to serve Melody Thomas-Morgan and Mark M. Moore and Jane 2 Doe Moore within the time set in this Court’s Order of October 24, 2012 (requiring 3 service within 30 days). (Doc. 19). Moreover, Plaintiff failed to serve Melody Thomas- 4 Morgan and Mark M. Moore and Jane Doe Moore within 120 days of the filing of either 5 the “Zeroth Amended Complaint” or the First Amended Complaint as required by 6 Federal Rule of Civil Procedure 4(m). Based on Plaintiff’s prior experience in this very 7 case, Plaintiff should be well-aware of the rule that he must timely serve Defendants. 8 However, the Court of Appeal’s opinion may have given Plaintiff the impression that he 9 is not required to diligently prosecute his case. Accordingly, the Court will not, at this 10 time, dismiss this case for failure to serve as required by Federal Rule of Civil Procedure 11 4(m) or failure to prosecute under Federal Rule of Civil Procedure 41(b), both of which 12 are implicated by Plaintiff’s lack of diligence. 13 The Court nonetheless finds dismissal as to Defendants Melody Thomas-Morgan, 14 Mark M. Moore and Jane Doe Moore appropriate because dismissal against non-moving 15 Defendants is appropriate, where, as here, the non-responding Defendants are in a 16 position similar to the moving Defendants. See Abagninin v. AMVAC Chem. Corp., 545 17 F.3d 733, 743 (9th Cir. 2008) (“A [d]istrict [c]ourt may properly on its own motion 18 dismiss an action as to defendants who have not moved to dismiss where such defendants 19 are in a position similar to that of moving defendants.”) (internal citations omitted). The 20 only well-pled allegations against Defendants Melody Thomas-Morgan, Mark M. Moore 21 and Jane Doe Moore fail to state a claim upon which relief can be granted pursuant to 22 Federal Rule of Civil Procedure 12(b)(6) as discussed at length herein. Accordingly, all 23 claims against Melody Thomas-Morgan, Mark M. Moore and Jane Doe Moore are 24 dismissed. 25 V. CONCLUSION 26 Based on the foregoing, 27 IT IS ORDERED that Defendants Glenn Savona, Dan Murray, Christine Keller, 28 - 28 - 1 and the City of Prescott’s (“Prescott Defendants”) Motion to Dismiss (Doc. 48) is 2 granted. 3 4 IT IS FURTHER ORDERED that this case is dismissed with prejudice as to all Defendants. 5 The Clerk of the Court shall enter judgment for Defendants accordingly. 6 Dated this 21st day of August, 2013. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 29 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?