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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Benjamin N. Hadley,
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Plaintiff,
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vs.
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Navajo County Sheriff's Department,
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Defendant.
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No. CV 12-08137-PCT-FJM
ORDER

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The court has before it defendant's motion to dismiss (doc. 8) and plaintiff's response
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(doc. 9). Defendant did not file a reply. Defendant moves to dismiss pursuant to Rule
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12(b)(6), Fed. R. Civ. P., for failure to state a claim.
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When considering a motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., "a
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court must construe the complaint in the light most favorable to the plaintiff and must accept
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all well-pleaded factual allegations as true." Shwarz v. United States, 234 F.3d 428, 435 (9th
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Cir. 2000). On the other hand, a court is "not bound to accept as true a legal conclusion
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couched as a factual allegation." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
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1955, 1965 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944
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(1986)). To survive a motion to dismiss, the complaint must contain "enough facts to state
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a claim to relief that is plausible on its face." Id. at 570, 127 S. Ct. at 1974. "A claim has
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facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
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Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). Dismissal may be "based on the lack
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of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal

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theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

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Title II of the Americans with Disabilities Act ("ADA") prohibits a public entity from

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discriminating against an individual with a disability. 42 U.S.C. § 12132. To state a claim,

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plaintiff must allege four elements: (1) he is an individual with a disability; (2) he is

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otherwise qualified to participate in or receive the benefit of a public entity's services,

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programs, or activities; (3) he was either excluded from participation in or denied the benefits

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of the public entity's services, programs, or activities, or was otherwise discriminated against

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by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by

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reason of his disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

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Plaintiff's complaint alleges that defendant's dispatchers accused plaintiff of yelling

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at them, that he told the dispatchers that he is hard of hearing, and that the dispatchers sent

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an officer from the City of Holbrook's Police Department to contact plaintiff about yelling

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at them. The complaint fails to state a facially plausible claim. Plaintiff has neither a

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cognizable legal theory nor sufficient facts to support a claim under Title II of the ADA.

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Dismissal is also appropriate because the Navajo County Sheriff's Department does

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not have the power to sue or be sued. See A.R.S. § 11–201; Braillard v. Maricopa County,

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224 Ariz. 481, 487, 232 P.3d 1263, 1269 (Ct. App. 2010). The department is a nonjural

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entity. It is only an administrative sub-unit of the county. The county itself, of course, can

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be sued.

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IT IS ORDERED GRANTING defendant's motion to dismiss without prejudice
(doc. 8).

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We urge plaintiff to seek the advice of a lawyer. If he does not have one, he may wish

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to contact the Lawyer Referral Service of the Maricopa County Bar Association at (602)

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257–4434.

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DATED this 25th day of September, 2012.

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