Poynor v. Mascher et al

Filing 4

ORDER Defendants' Motion to Dismiss (Doc. 3 ) is granted. The Clerk of Court shall terminate this action. Signed by Judge G Murray Snow on 4/5/2012.(KMG)

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WO

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Scott Mascher, Yavapai County Sheriff;)
Yavapai County Sheriff’s Office; Clyde)
Bentley, a married man and Jane Doe)
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Bentley; and Yavapai County,
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Defendants.
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Michael Poynor,

No. CV-11-8172-PCT-GMS
ORDER

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Pending before the Court is Defendants’ Motion to Dismiss. (Doc. 3). For the reasons
detailed below, the motion is granted.
BACKGROUND

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According to the complaint, on October 9, 2010, Defendant Clyde Bentley, a deputy

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in the Yavapai County Sheriff’s Office (“YCSO”), responded to a “weapons offense” at 2733

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North Kings Highway. When he arrived, he encountered Plaintiff Michael Poynor, who was

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armed, but who was not threatening him. After telling Plaintiff to drop the weapon,

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Defendant Bentley shot Plaintiff in the left side of his neck. (Doc. 1-2 at 3). Plaintiff filed suit

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in Yavapai County Superior Court on October 7, 2011, making a number of state law claims

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and making constitutional claims under 42 U.S.C. § 1983. (Doc. 1-2). Defendants removed

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to Federal Court on November 1, 2011. (Doc. 1). Defendants filed a motion to dismiss on

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November 8, 2011. (Doc. 3). In the motion, Defendants argue 1) that the state law claims

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must be dismissed because Plaintiff failed to file a Notice of Claim within 180 days of the

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claim’s accrual, as required by state law, 2) the claims against YCSO must be dismissed

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because YCSO is a non-jural entity, and 3) Plaintiff’s § 1983 claims must be dismissed

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because the claims are improperly pled. (Doc. 3).

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DISCUSSION
I.

Legal Standard

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To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil

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Procedure 12(b)(6), a complaint must contain factual allegations sufficient to “raise a right

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to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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When analyzing a Rule 12(b)(6) motion, all plausible “allegations of material fact are taken

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as true and construed in the light most favorable to the non-moving party.” Smith v. Jackson,

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84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched as factual

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allegations are not given a presumption of truthfulness, and “conclusory allegations of law

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and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto v. FDIC,

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139 F.3d 696, 699 (9th Cir. 1998).

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The Arizona District Court requires parties to file a responsive memorandum within

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fourteen days after a motion has been filed, unless otherwise ordered by the court. LRCiv

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7.2(d). Failure do to so “may be deemed a consent to the denial or granting of the motion and

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the Court may dispose of the motion summarily.” LRCiv 7.2(i). “Failure to follow a district

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court’s local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th

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Cir. 1995).

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II.

Analysis

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Plaintiff’s complaint contains five state law claims and one federal claim. The state

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law claims—for Battery, Negligent/Intentional Infliction of Emotional Distress, Violation

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of a Criminal Statute, Negligence of Government Entities, and False Imprisonment—are

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lodged against Defendant Bentley, Yavapai County, and YCSO. (Doc. 1-2, Ex. A at 3–4).

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Plaintiff’s § 1983 claim is lodged against “Defendants” for “allowing [Defendant Bentley]

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under color of law” to use excessive force, for allowing him to assault Plaintiff, for allowing

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him to abuse his power, for failing to train him, and for breaching a duty “in allowing or

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disregarding the acts complained herein.” (Doc. 1-2, Ex. A, at 4). Defendant Bentley is not

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named in his individual capacity in the § 1983 claim.

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Arizona law requires that a plaintiff file a notice of claim “with the person or persons

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authorized to accept service for the public entity . . . as set forth in the Arizona rules of civil

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procedure.” Falcon ex. rel. Sandoval v. Maricopa Cty., 213 Ariz. 525, 526, 144 P.3d 1254,

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1255 (2006). See also Arizona Revised Statutes (“A.R.S.”) § 12-821.01(A)(2003). If a public

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entity is not properly noticed within 180 days of the accrual of the claim, a court must

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dismiss the claim. See Falcon, 213 Ariz. at 528. Defendant attaches affidavits from

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Defendant Mascher, Defendant Bentley, and Defendant Julie Ayers, the acting Clerk of the

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Board of Supervisors of Yavapai County. (Doc. 3-1, Ex. A–C). All three affirm that neither

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they nor the other proper entities received a notice of Plaintiff’s claim. Id.

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Generally, a court may not consider evidence or documents beyond the complaint in

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the context of a Rule 12(b)(6) Motion to Dismiss. See Hal Roach Studios, Inc. v. Richard

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Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1990) (amended decision). Plaintiff alleges

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in his complaint that “notice of Plaintiff’s claim was provided pursuant to A.R.S. 12-821-

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821.01. [sic]” (Doc. 1-2, Ex. A at 3). He does not state to whom notice was provided, and did

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not file a response to the motion to dismiss. Plaintiff’s state claims against the county,

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Defendant Bentley, and Defendant Mascher are dismissed.

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In his § 1983 claim, Plaintiff does not name Defendant Bentley in his individual

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capacity. Instead, he alleges that “Defendants” are liable for allowing or supervising

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Defendant Bentley’s actions. (Doc. 1-2, Ex. A, at 4). Supervisors are not liable in § 1983

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suits under the doctrine of respondeat superior; instead a supervisor is only liable if he “set

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in motion a series of acts by others, or knowingly refused to terminate a series of acts by

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others, which he knew or reasonably should have known, would cause others to inflict the

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constitutional injury.” Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)

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(internal quotation omitted). Municipalities may only be liable under § 1983 for failing to

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train employees when the failure both can be traced to the injury suffered by a plaintiff and

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“amounts to deliberate indifference to the rights of persons with whom the police come into

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contact.” City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).

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Plaintiff does not allege that any supervisor either set in motion or knowingly refused

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to terminate the actions of Defendant Bentley. He states that some unnamed defendant

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“fail[ed] to adequately train [Defendant Bentley]” but does not plead that whichever

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Defendant was responsible for the training acted with deliberate indifference. Again, Plaintiff

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did not respond to Defendant’s motion to dismiss, thereby waiving any argument that his

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official capacity §1983 claim should proceed. This claim will also be dismissed.

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CONCLUSION

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Plaintiff, although represented by counsel, did not respond to Defendant’s Motion to

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Dismiss. As such, his action “may be deemed a consent to the denial or granting of the

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motion and the Court may dispose of the motion summarily.” LRCiv 7.2(i). Defendant’s

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motion is therefore granted.

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IT IS THEREFORE ORDERED:

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1.

Defendant’s Motion to Dismiss (Doc. 3) is granted.

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2.

The Clerk of Court shall terminate this action.

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DATED this 5th day of April, 2012.

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