Hadley v. Navajo County Sheriff Department

Filing 10

ORDER granting Defendant's 8 Motion to Dismiss without prejudice. Signed by Judge Frederick J Martone on 9/25/2012.(LFIG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Benjamin N. Hadley, 9 Plaintiff, 10 vs. 11 Navajo County Sheriff's Department, 12 Defendant. 13 ) ) ) ) ) ) ) ) ) ) ) No. CV 12-08137-PCT-FJM ORDER 14 The court has before it defendant's motion to dismiss (doc. 8) and plaintiff's response 15 (doc. 9). Defendant did not file a reply. Defendant moves to dismiss pursuant to Rule 16 12(b)(6), Fed. R. Civ. P., for failure to state a claim. 17 When considering a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., "a 18 court must construe the complaint in the light most favorable to the plaintiff and must accept 19 all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th 20 Cir. 2000). On the other hand, a court is "not bound to accept as true a legal conclusion 21 couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 22 1955, 1965 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944 23 (1986)). To survive a motion to dismiss, the complaint must contain "enough facts to state 24 a claim to relief that is plausible on its face." Id. at 570, 127 S. Ct. at 1974. "A claim has 25 facial plausibility when the plaintiff pleads factual content that allows the court to draw the 26 reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. 27 Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). Dismissal may be "based on the lack 28 1 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 2 theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 3 Title II of the Americans with Disabilities Act ("ADA") prohibits a public entity from 4 discriminating against an individual with a disability. 42 U.S.C. § 12132. To state a claim, 5 plaintiff must allege four elements: (1) he is an individual with a disability; (2) he is 6 otherwise qualified to participate in or receive the benefit of a public entity's services, 7 programs, or activities; (3) he was either excluded from participation in or denied the benefits 8 of the public entity's services, programs, or activities, or was otherwise discriminated against 9 by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by 10 reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). 11 Plaintiff's complaint alleges that defendant's dispatchers accused plaintiff of yelling 12 at them, that he told the dispatchers that he is hard of hearing, and that the dispatchers sent 13 an officer from the City of Holbrook's Police Department to contact plaintiff about yelling 14 at them. The complaint fails to state a facially plausible claim. Plaintiff has neither a 15 cognizable legal theory nor sufficient facts to support a claim under Title II of the ADA. 16 Dismissal is also appropriate because the Navajo County Sheriff's Department does 17 not have the power to sue or be sued. See A.R.S. § 11–201; Braillard v. Maricopa County, 18 224 Ariz. 481, 487, 232 P.3d 1263, 1269 (Ct. App. 2010). The department is a nonjural 19 entity. It is only an administrative sub-unit of the county. The county itself, of course, can 20 be sued. 21 22 IT IS ORDERED GRANTING defendant's motion to dismiss without prejudice (doc. 8). 23 We urge plaintiff to seek the advice of a lawyer. If he does not have one, he may wish 24 to contact the Lawyer Referral Service of the Maricopa County Bar Association at (602) 25 257–4434. 26 DATED this 25th day of September, 2012. 27 28 -2-

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