Palmer v. Savona et al
Filing
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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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Peter Michael Palmer,
Plaintiff,
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ORDER
v.
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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,
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Defendants.
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Pending before the Court is Defendants Glenn Savona, Dan Murray, Christine
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Keller, and the City of Prescott’s (the “Prescott Defendants”) Motion to Dismiss (Doc.
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48). Plaintiff Peter Michael Palmer filed a Response (Doc. 54) and the Prescott
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Defendants’ filed a Reply in Support of their Motion to Dismiss. (Doc. 55). The Court
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now rules on the motion.
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I.
FACTUAL BACKGROUND1
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On January 23, 2009, Plaintiff was served with an ex parte civil injunction (the
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“injunction”) prohibiting Plaintiff from having any contact with Defendant Melody
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Thomas-Morgan or her minor children, except through “attorneys, legal process, [or]
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court hearings” (Doc. 48-1 at 23; Doc. 38 at 11). Plaintiff subsequently challenged the
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injunction in the City of Prescott Justice Court (“Prescott Justice Court”) (Doc. 38 at 11).
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On February 4, 2009, Plaintiff’s “attorney sua sponte” faxed a “motion on
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[Plaintiff’s] behalf” to Defendant Thomas-Morgan (the “first fax”). (Doc. 38 at 12).
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Plaintiff provided his attorney with the “fax number for [Defendant Thomas-Morgan] at
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the church office where [Defendant Thomas-Morgan] worked.” (Doc. 38 at 12). As a
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result of this first fax to Defendant Thomas-Morgan’s place of employment, on February
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4, 2009, Defendant Dan Murray, a City of Prescott Police Department employee sent a
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request to Defendant Glenn Savona, the Prescott City Prosecutor, to file a criminal
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complaint against Plaintiff for violating the injunction. (Doc. 54 at 23).
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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.).
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On March 19, 2009, Defendant Savona filed a complaint (the “criminal
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complaint”) with the Prescott Justice Court charging Plaintiff with violating Arizona
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Revised Statutes section 13-2810(A)(2) for “knowingly disobey[ing] or resist[ing] the
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lawful order . . . of the [c]ourt.” (Doc. 48-1 at 11). The criminal complaint was signed by
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Defendant Christine Keller, a City of Prescott Police Department employee. (Id.). In late
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March, Plaintiff received a copy of the criminal complaint via mail. (Doc. 38 at 16).
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On March 25, 2009, Judge Markham, the judge who enforced the injunction,
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instructed Plaintiff that he “was not to mail copies of court paperwork to [his] adversary.”
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(Doc. 38 at 17).
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Unless otherwise noted, the facts set forth herein are as alleged by Plaintiff in his
First Amended Complaint (Doc. 38).
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On June 23, 2009, Judge Markham held a pre-trial hearing regarding the criminal
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complaint. (Doc. 48-1 at 7). At the hearing, Judge Markham ordered Plaintiff to “obey all
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laws & have no contact with [Defendant Thomas-Morgan]” and “not to possess ANY
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deadly weapons during the pendency of this case.” (Doc. 48-1 at 7) (emphasis in
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original). In response to Plaintiff’s request for a change of judge, Judge Markham recused
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himself and the case was transferred to Judge Ray. (Doc. 38 at 18). Judge Markham
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informed Plaintiff at the hearing that “Judge Ray will set the trial date and notify all
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parties.” (Doc. 48-1 at 7).
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On July 2, 2009, Plaintiff filed a motion to modify the release conditions set by
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Judge Markham on June 23, 2009 to allow Plaintiff to “possess weapons during the
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pendency of the case.” (Doc. 48-1 at 13). On July 24, 2009, Judge Ray denied Plaintiff’s
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motion to modify the release conditions. (Doc. 48-1 at 18).
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On October 5, 2009, Plaintiff filed a Motion to Dismiss the charge listed in the
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criminal complaint. (Doc. 48-1 at 27). Plaintiff argued that “Mr. Palmer[’s] actions were
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specifically permitted by the order of the court and, even if the Court finds those actions
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were not permitted, no evidence exists to show that Mr. Palmer knowingly violated the
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order of this court.” (Doc. 48-1 at 27). On October 22, 2009, Judge Ray denied Plaintiff’s
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Motion to Dismiss, ruling that “the [criminal] complaint is sufficient as a matter of law.”
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(Doc. 55-1 at 7).
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On October 30, 2009, Defendant Savona filed a Motion to Dismiss the criminal
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complaint. On November 2, 2009, Judge Ray granted Defendant Savona’s motion to
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dismiss. (Doc. 48-1 at 5).
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On October 29, 2010, Plaintiff filed a complaint with this Court alleging violations
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of Plaintiff’s civil rights. (Doc. 1). On January 2, 2013, Plaintiff filed an amended civil
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complaint (the “civil complaint”). (Doc. 38). In the amended civil complaint, Plaintiff
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alleges thirteen separate counts against Defendants, namely: (1) malicious prosecution
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under state law, (2) violations of his Fourth Amendment rights, (3) abuse of process
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under state law, (4) violations of his Fifth Amendment rights, (5) violations of his “right
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to a fair trial” under the Fourteenth Amendment, (6) deprivation of his right to due
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process as stated in Brady v. Maryland under the Fourteenth Amendment, (7) malicious
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prosecution under 42 U.S.C. § 1983, (8) violation of his Second Amendment rights, (9)
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conspiracy to deprive Plaintiff of his constitutional rights under 42 U.S.C. §1985(3), (10)
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negligence in failure to prevent the conspiracy depriving Plaintiff of his constitutional
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rights under 42 U.S.C. § 1986, (11) intentional infliction of emotional distress under state
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law, (12) false light invasion of privacy under state law, and (13) negligent supervision
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under state law. (Id.).
On January 30, 2013, the Prescott Defendants filed a motion to dismiss for failure
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to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 48).
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II.
LEGAL STANDARD
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A.
Motion to Dismiss
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To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must
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meet the requirements of Rule 8. Rule 8(a)(2) requires a “short and plain statement of the
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claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice
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of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
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550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
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Although a complaint attacked for failure to state a claim does not need detailed
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factual allegations, the pleader’s obligation to provide the grounds for relief requires
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“more than labels and conclusions, and a formulaic recitation of the elements of a cause
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of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “On a
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motion to dismiss, courts are not bound to accept as true a legal conclusion couched as a
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factual allegation.” Twombly, 550 U.S. at 555 (internal citations omitted). The factual
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allegations of the complaint must be sufficient to raise a right to relief above a
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speculative level. Id.
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Rule 8’s pleading standard demands more than “an unadorned, the defendant-
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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
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Twombly, 550 U.S. at 555). A complaint that offers nothing more than blanket assertions
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will not suffice. To survive a motion to dismiss, a complaint must contain sufficient
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factual matter, which, if accepted as true, states a claim to relief that is “plausible on its
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face.” Id. Facial plausibility exists if the pleader pleads factual content that allows the
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court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged. Id. Plausibility does not equal “probability,” but plausibility requires more than a
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sheer possibility that a defendant has acted unlawfully. Id. “Where a complaint pleads
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facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line
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between possibility and plausibility of entitlement to relief.’ Id. (quoting Twombly, 550
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U.S. at 557). Because Plaintiff is proceeding pro se, the Court must construe his
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Complaint liberally, even when evaluating it under the Iqbal standard. Johnson v. Lucent
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Technologies Inc., 653 F.3d 1000, 1011 (9th Cir. 2001). However “[s]omething labeled a
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complaint but written more as a press release, prolix in evidentiary detail, yet without
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simplicity, conciseness and clarity as to whom plaintiffs are suing for what wrongs, fails
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to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172,
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1180 (9th Cir. 1996). “Prolix, confusing complaints . . . impose unfair burdens on
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litigants and judges.” Id. at 1179.
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In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the
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facts alleged in a complaint in the light most favorable to the drafter of the complaint, and
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the Court must accept all well-pleaded factual allegations as true. Shwarz v. United
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States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept
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as true a legal conclusion couched as a factual allegation, Papasan, 478 U.S. at 286, or an
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allegation that contradicts facts that may be judicially noticed by the Court, Shwarz, 234
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F.3d at 435.
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B.
Leave to Amend
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Under previous Ninth Circuit Court of Appeals precedent, the court would sua
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sponte grant leave to amend when granting a motion to dismiss, unless a pleading could
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not be cured by the allegation of other facts. See Lacey v. Maricopa County, 693 F.3d
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896, 927 (9th Cir. 2012) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
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However, this precedent has been called into question by the Court of Appeals, in light of
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the recent changes to the Federal Rule of Civil Procedure 15, which now allows parties
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twenty-one days from responsive pleadings and motions to dismiss to amend as of right.
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See Lacey, 693 F.3d at 927.
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Moreover, when a party properly seeks leave to amend, the Court considers the
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following factors when deciding whether or not to grant leave to amend: (1) undue delay,
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(2) bad faith, (3) prejudice to the opposing party, (4) futility of amendment, and (5)
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whether plaintiff has previously amended his complaint. Western Shoshone Nat. Council
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v. Molini, 951 F.2d 200, 204 (9th Cir. 1991).
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previously filed a First Amended Complaint in response to a prior motion to dismiss.
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This Court’s Order of January 10, 2013 informed Plaintiff that “[n]o further amendments
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to the Complaint will be permitted unless Plaintiff first obtains leave of the Court. See
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Fed. R. Civ. P. 15(a)(2).” (Doc. 44 at 2 n.1). Despite this warning, Plaintiff’s response to
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Prescott Defendants’ motion to dismiss includes several attempts to improperly add or
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otherwise amend several of his claims. (E.g., Doc. 54 at 10). The Court could properly
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deny plaintiff’s attempts to amend in violation of both the local rules and this Court’s
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previous order without further discussion. However, because the Court must generally
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construe a pro se plaintiff’s complaint liberally, the Court will consider Plaintiff’s
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additional allegations in the analysis of the motion to dismiss.
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III.
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In
the
present
case,
Plaintiff
has
ANALYSIS
The Prescott Defendants move to dismiss all of the claims in Plaintiff’s
complaint. (Doc. 48).
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A.
Malicious Prosecution under State Law (Count One)
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In count one, Plaintiff alleges a claim of malicious prosecution against Defendants
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Savona, Murray, Keller, Thomas-Morgan, and Moore. In Arizona, to succeed on a state
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law claim of malicious prosecution, the Plaintiff must show that: (1) there was a criminal
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prosecution, (2) that terminated in favor of the plaintiff, (3) the defendants were the
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prosecutors, (4) the criminal prosecution was actuated by malice, (5) the prosecution was
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without probable cause, and (6) the prosecution caused damages. Slade v. City of
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Phoenix, 541 P.2d 550, 552 (Ariz. 1975). The existence of probable cause is a “complete
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and absolute defense to an action for malicious prosecution.” Id.
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The Prescott Defendants argue the state law claim of malicious prosecution should
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be dismissed because Plaintiff has not alleged sufficient facts to show two of the elements
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needed for a state law malicious prosecution claim, namely: malice and lack of probable
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cause. Specifically, the Prescott Defendants argue that Plaintiff has not shown the
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prosecution was actuated by malice and that Plaintiff’s version of the facts as alleged do
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not demonstrate that Defendant Savona did not have probable cause at the time he filed
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the criminal complaint. In response, Plaintiff argues that he has alleged facts that show
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Defendant Savona lacked probable cause to file the criminal complaint and that
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Defendants engaged in “wrongful and bad faith conduct” and, as a result, acted
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maliciously. (Doc. 38 at 24-6) (Doc. 54 at 3-4).
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As stated above, the existence of probable cause is an absolute defense to a state
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law claim of malicious prosecution. Accordingly, the Court will consider first whether,
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based on the facts alleged by Plaintiff, there was probable cause to initiate the criminal
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proceedings.
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1.
Probable Cause
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First, the Court notes that several of the other counts in Plaintiff’s complaint rely
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on Plaintiff’s argument that Defendant Savona did not have probable cause when he filed
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the criminal complaint. The existence or lack of probable cause is a question of law to be
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determined by the Court. Slade v. City of Phoenix, 541 P.2d 550, 553 (Ariz. 1975). As a
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result, Plaintiff’s statements regarding a “lack of probable cause” are legal conclusions
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that the Court is not required to accept as true in deciding on a motion to dismiss. See
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Twombly, 550 U.S. at 555 (“on a motion to dismiss, courts are not bound to accept as true
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a legal conclusion couched as a factual allegation”). The Court must examine whether the
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facts, as alleged, support Plaintiff’s legal conclusion.
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To support his legal conclusion that Defendant Savona lacked probable cause to
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file the criminal complaint, Plaintiff makes factual allegations relating to a police report,
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Judge Ray’s August 5, 2009 Order, and the ultimate dismissal of the criminal action.
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Plaintiff first argues that, in the police report, Defendant Savona “admit[s] that
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[Plaintiff] did not have the mens rea to commit a crime” when Plaintiff sent the second
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fax. (Doc. 54 at 2). Plaintiff admits the police report is essential to support his malicious
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prosecution claim. (Id. at 2). Regarding the police report, Plaintiff states:
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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.
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(Doc. 38 at 24-5). Essentially, Plaintiff argues that, because Defendant Savona “knew”
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Plaintiff was unaware he was violating a court order when Plaintiff sent the second fax,
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“there is no way [Defendant Savona] could [have] believed [Plaintiff] was guilty” of
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violating the court order by sending the first fax. (Doc. 54 at 3). As a result, Plaintiff
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argues Defendant Savona lacked probable cause to bring the criminal complaint. (Id.).
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Plaintiff provided this police report to the court as an attachment. (Doc. 31 at 18).
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The Court takes judicial notice of this police report as a public record.2 The police report
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states:
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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.
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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).
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(Id.). Contrary to Plaintiff’s allegation that Defendant Savona wrote this police report, a
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review of the document shows that it was written and signed by a police officer,
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Defendant Murray. (Id.). As an initial matter, because this police report was not written
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by Defendant Savona, it does not demonstrate Defendant Savona’s opinion or state of
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mind. As a result, the police report referenced by Plaintiff does not address whether or
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not Defendant Savona believed he had probable cause to file the criminal complaint, as
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Plaintiff alleges. However, even if this document did show Defendant Savona’s opinion
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or state of mind, it does not support Plaintiff’s conclusory allegation that Defendant
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Savona did not have probable cause to file the criminal complaint.
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Plaintiff also argues that Judge Ray’s August 5, 2009 Order (Doc. 55 at 17)
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supports his argument that Defendant Savona lacked probable cause to initiate the
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criminal proceedings against him. (Doc. 54 at 3). However, Judge Ray’s order addressed
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a question of attorney-client privilege and did not evaluate whether Defendant Savona
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had probable cause at the time the criminal complaint was filed. (Id.). Further, even if
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Judge Ray’s order did conclude, as Plaintiff alleges (Id.), that “there was no crime by
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faxing,” this does not change the probable cause analysis. As long as there was probable
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cause at the time the initial criminal complaint was filed, “it is not material” that the
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individual is ultimately found to be innocent. See Cullison v. City of Peoria, 584 P.2d
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1156, 1159 (Ariz. 1978). When there is probable cause to initiate the action, the
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prosecutor is “not required to conduct a trial before determining whether or not” to bring
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the charges. Id. As a result, Judge Ray’s August 5, 2009 order does not support Plaintiff’s
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conclusory allegation that Defendant Savona lacked probable cause to bring the
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complaint.
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Plaintiff also argues that the fact that Defendant Savona ultimately filed a motion
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to dismiss the case shows there was no probable cause to initiate the proceedings.
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However, “subsequent dismissal of the criminal proceedings does not in and of itself
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indicate that there was no probable cause at the time the arrest was made or charges
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filed.” Todd v. Melcher, 462 P.2d 850, 853 (Ariz. Ct. App. 1969). Accordingly,
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Plaintiff’s factual allegations do not support his legal conclusion that Defendant Savona
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lacked probable cause to file the criminal complaint. As a result, the Court will determine
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whether, according to the facts alleged, probable cause existed to file the criminal
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complaint.
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In analyzing whether there was probable cause to initiate a criminal proceeding
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under a state law claim for malicious prosecution, the Court considers whether there was
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“a reasonable ground of suspicion, supported by circumstances sufficient to warrant an
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ordinarily prudent man in believing the accused [was] guilty of the offense.” Gonzales v.
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City of Phoenix, 52 P.3d 184, 187 (Ariz. 2002) (citing McClinton v. Rice, 265, P.2d 425,
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431 (Ariz. 1953)). “Whether a given state of facts constitutes probable cause is always a
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question of law to be determined by the court.” Slade v. City of Phoenix, 541 P.2d 550,
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553 (Ariz. 1975). “The test generally applied is: upon the appearances presented to the
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[Prosecutor], would a reasonably prudent man have instituted or continued the
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proceeding?” Gonzales, 52 P.3d at 187.
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In the present case, Defendant Savona filed a criminal complaint alleging Plaintiff
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violated Arizona Revised Statutes section 13-2810(A)(2) by “fax[ing] or caus[ing] to be
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faxed, papers to the workplace of the protected party without fulfilling requirements of
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Rule 5(C) of the Arizona Rules of Civil Procedure[].” (Doc. 48-1 at 11). Arizona Revised
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Statutes section 13-2810(A)(2) states that “a person commits interfering with judicial
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proceedings if such person knowingly disobeys or resists the lawful order, process, or
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other mandate of a court.” Thus, for probable cause to have existed in this case, there
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must have been a reasonable ground of suspicion, supported by circumstances sufficient
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to warrant a reasonable man to believe that Plaintiff was guilty of knowingly disobeying
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a court order by faxing papers to the workplace of Defendant Thomas-Morgan without
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fulfilling the requirements of Arizona Rule of Civil Procedure 5(C).
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The term “knowingly” is defined in Arizona Revised Statutes section 13-
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105(10)(a) as meaning “with respect to conduct or to a circumstance described by a
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statute or defining an offense, that a person is aware or believes that the person’s conduct
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is of that nature or that the circumstance exists. It does not require any knowledge of the
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unlawfulness of the act or omission.” Ariz. Rev. Stat. § 13-105(10)(a) (emphasis added).
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A person acts “knowingly” if they act “voluntarily and intentionally and not by accident
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or mistake.” United States v. Jewell, 532 F.2d 697 (9th Cir. 1976). Additionally, even if a
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person believes their actions are legal, that person can still act “knowingly” to violate
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Arizona Revised Statutes section 13-105. See State v. Morse, 617 P.2d 1141, 1147 (Ariz.
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1980). Thus, in order to believe Plaintiff “knowingly” disobeyed the court order, there
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has to be a reasonable belief that Plaintiff acted voluntarily and Plaintiff’s actions were
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not by accident, mistake, or inadvertence. Plaintiff’s belief that he thought his actions
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were legal is irrelevant to the question of probable cause under Arizona Revised Statutes
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section 13-105.
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In this case, the Plaintiff’s only allegations regarding the lack of probable are as
follows:
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The injunction against Plaintiff was in effect at the time of the first fax. (Doc. 48-1
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at 23). The injunction stated “[Mr. Palmer] shall have no contact with [Defendant
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Thomas-Morgan] except through attorneys, legal process, [and] court hearings.” (Id.).
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The injunction also stated “[Mr. Palmer] shall not go to or near [Defendant Thomas-
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Morgan’s] or other Protected Person’s Workplace.” (Id. at 24). On January 23, 2009,
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Plaintiff was “served” with the injunction. Plaintiff was aware of the injunction against
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him when the first fax was sent to Defendant Thomas-Morgan (Doc. 38 at 13).
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On February 4, 2009, Plaintiff, through an attorney, sent a document to Defendant
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Thomas-Morgan at her place of work. The document was Plaintiff’s “first emergency
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motion” in the case involving the injunction. (Doc. 38 at 13). Plaintiff admits this fax
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“could not be considered service” since he also mailed a copy of the motion to Defendant
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Thomas-Morgan as service. (Doc. 38 at 17). Defendant Thomas-Morgan did not agree or
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consent to service by facsimile transmission. (Doc. 55-1 at 5).
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On February 4, 2009, “immediately after [receiving] the first fax,” Defendant
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Thomas-Morgan informed Defendant Murray that Plaintiff had violated the injunction.
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(Doc. 38 at 14). Defendant Murray “instantly generated” a police report and forwarded it
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to Defendant Savona “for charging.” (Id. at 14-15). After receiving the police report from
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Defendant Murray, Defendant Savona requested “info on the fax – who received, when,
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where – how addressed cover sheet” from Defendant Murray. (Doc. 54 at 23). In that
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request Defendant Savona further stated “Rule 5 of Rules of Civil Procedure indicates
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delivery by facsimile is not waived without court order or agreement of the parties.” (Id.).
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On March 19, 2009, Defendant Savona filed a criminal complaint against Plaintiff
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for knowingly violating a court order under Arizona Revised Statutes section 13-
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2810(A)(2). (Doc. 38 at 16).
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Based on the facts as alleged by Plaintiff, there was a reasonable ground of
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suspicion, supported by circumstances sufficient to warrant a reasonable man to believe
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that Plaintiff was guilty of violating Arizona Revised Statutes section 13-105.
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Accordingly, as alleged by Plaintiff, Defendant Savona had probable cause to initiate the
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criminal proceedings against Plaintiff. Therefore, Plaintiff has failed to state a claim upon
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which relief can be granted for malicious prosecution.
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2.
Malice
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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
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facts to state a conspiracy, Plaintiff still fails to state a claim upon which relief can be
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granted for conspiracy because as discussed above Plaintiff has failed to state a claim for
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a violation of any of Plaintiff’s constitutional rights.
Accordingly, Plaintiff counts nine and ten are dismissed.
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IV.
THE REMAINING DEFENDANTS
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On October 29, 2010, Plaintiff filed his original complaint in this case against
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Defendant Savona and “Jane Doe” Savona, husband and wife. (Doc. 1). Plaintiff did not
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timely return the service packets for the Marshals to serve Defendant Savona with the
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Complaint and the Court set a show cause hearing requiring Plaintiff to appear and show
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cause why the case should not be dismissed for failure to prosecute and failure to comply
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with the Court’s Orders. (Doc. 9). When Plaintiff did not appear for the show cause
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hearing, the Court dismissed the case without prejudice. The Court of Appeals reversed
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this Court’s decision on the basis that the Court did not show its work in analyzing the
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factors that are to “guide” the court’s decision as to whether to dismiss for failure to
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prosecute. (Doc. 18-2). In its Order, the Court of Appeals did not address the fact that
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Plaintiff failed to comply with two Orders of the Court, which is an independent basis for
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dismissal. (See id.). The Court of Appeals likewise did not address the fact that Plaintiff
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never made a showing of good cause for his failure to return the service packets within
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the time set by the Court’s Order.8 (See id.).
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After the case was remanded, on November 21, 2012, Plaintiff filed what he titled
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his “Zeroth Amended Complaint,” naming the following Defendants: Glenn A. Savona
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and Jane Doe Savona, husband and wife, Dan Murray and Jane Doe Murray, husband and
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wife, Christine Keller and Joseph Keller, wife and husband, Melody Thomas-Morgan,
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and Mark M. Moore and Jane Doe Moore, husband and wife. (Doc. 20). Plaintiff filed
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Proofs of Service of the “Zeroth Amended Complaint” with the Court for the following
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Defendants: Dan Murray, Jane Doe Murray, the City of Prescott, Christine Keller, John
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Doe Keller, Glenn Savona, Jane Doe Savona. On January 2, 2013, Plaintiff filed a First
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Amended Complaint, naming the same Defendants as he named in his “Zeroth Amended
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Complaint.” (Doc. 38). There is no evidence in the Record that Plaintiff has ever served
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Defendants Melody Thomas-Morgan and/or Mark M. Moore and Jane Doe Moore with
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any of his complaints.
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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).
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Plaintiff failed to serve Melody Thomas-Morgan and Mark M. Moore and Jane
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Doe Moore within the time set in this Court’s Order of October 24, 2012 (requiring
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service within 30 days). (Doc. 19). Moreover, Plaintiff failed to serve Melody Thomas-
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Morgan and Mark M. Moore and Jane Doe Moore within 120 days of the filing of either
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the “Zeroth Amended Complaint” or the First Amended Complaint as required by
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Federal Rule of Civil Procedure 4(m). Based on Plaintiff’s prior experience in this very
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case, Plaintiff should be well-aware of the rule that he must timely serve Defendants.
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However, the Court of Appeal’s opinion may have given Plaintiff the impression that he
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is not required to diligently prosecute his case. Accordingly, the Court will not, at this
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time, dismiss this case for failure to serve as required by Federal Rule of Civil Procedure
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4(m) or failure to prosecute under Federal Rule of Civil Procedure 41(b), both of which
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are implicated by Plaintiff’s lack of diligence.
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The Court nonetheless finds dismissal as to Defendants Melody Thomas-Morgan,
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Mark M. Moore and Jane Doe Moore appropriate because dismissal against non-moving
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Defendants is appropriate, where, as here, the non-responding Defendants are in a
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position similar to the moving Defendants. See Abagninin v. AMVAC Chem. Corp., 545
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F.3d 733, 743 (9th Cir. 2008) (“A [d]istrict [c]ourt may properly on its own motion
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dismiss an action as to defendants who have not moved to dismiss where such defendants
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are in a position similar to that of moving defendants.”) (internal citations omitted). The
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only well-pled allegations against Defendants Melody Thomas-Morgan, Mark M. Moore
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and Jane Doe Moore fail to state a claim upon which relief can be granted pursuant to
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Federal Rule of Civil Procedure 12(b)(6) as discussed at length herein. Accordingly, all
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claims against Melody Thomas-Morgan, Mark M. Moore and Jane Doe Moore are
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dismissed.
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V.
CONCLUSION
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Based on the foregoing,
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IT IS ORDERED that Defendants Glenn Savona, Dan Murray, Christine Keller,
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and the City of Prescott’s (“Prescott Defendants”) Motion to Dismiss (Doc. 48) is
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granted.
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IT IS FURTHER ORDERED that this case is dismissed with prejudice as to all
Defendants.
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The Clerk of the Court shall enter judgment for Defendants accordingly.
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Dated this 21st day of August, 2013.
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