Newman v. Show Low Police Department et al

Filing 34

ORDER granting in part and denying in part 29 Defendants' Motion toDismiss; granting 30 Defendant Torel Nichols' Second Motion to Dismiss. IT IS FURTHER ORDERED dismissing with prejudice all claims against Defendants Douglass, McNeil, and Nichols; dismissing with prejudice all claims against Defendants Williams, Fechtelkotter, Spears, and Roby except excessive force. Thus, Plaintiffs sole remaining claims are the excessive force claims against Defendants Williams, Fechtelkotter, Spears, and Roby. IT IS FURTHER ORDERED striking Plaintiff's "Reply to Defendants Counsel Motion to Dismiss" [sic] (Doc. 33 ). Signed by Senior Judge James A Teilborg on 3/6/2014. (ALS)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Joe Newman,

No. CV-13-08005-PHX-JAT
Plaintiff,

10
11

v.

12

ORDER

Show Low Police Department; Steve L.
Williams; Jason O. Spears; Shawn T. Roby;
Cory L. Fechtelkotter; Kenneth E.
Douglass; Jeff McNeil; Torel Nichols,

13
14

Defendants.

15
16

Pending before the Court are Defendants Steven L. Williams, Jason O. Spears,

17

Shawn T. Roby, Cory L. Fechtelkotter, Kenneth E. Douglass, and Jeff McNeil’s Motion

18

to Dismiss (Doc. 29) as well as Defendant Torel Nichols’ Second Motion to Dismiss

19

(Doc. 30).1 The Court now rules on the motions.

20

I.

Background

21

Plaintiff initially filed a complaint alleging that City of Show Low police officers

22

used excessive force while falsely arresting Plaintiff, causing Plaintiff to suffer physical

23

injury. (Doc. 1). Defendants moved to dismiss Plaintiff’s claims pursuant to Federal Rule

24

of Civil Procedure (“Rule”) 12(b)(6). (Doc. 14; Doc. 24). The Court granted Defendants’

25

motion, finding Plaintiff’s complaint contained only conclusory allegations and failed to

26

state facts upon which relief could be granted. (Doc. 27 at 6). However, the Court

27
28

1

For convenience, the Court refers to both motions as simply “Defendants’
motions.”

1

permitted Plaintiff to amend his complaint. (Doc. 27 at 9). Plaintiff subsequently filed his

2

First Amended Complaint (the “Amended Complaint”) (Doc. 28).2 Defendants now move

3

to dismiss Plaintiff’s Amended Complaint. (Doc. 29; Doc. 30).

4

Plaintiff’s Amended Complaint clarifies that Plaintiff seeks damages based upon

5

alleged violations of his Fourth and Sixth Amendment rights, apparently related to

6

Plaintiff’s criminal conviction on unspecified charges. (Doc. 28 at 1, 5, 9). Plaintiff

7

alleges he was the subject of an unreasonable search and seizure, false arrest, and

8

excessive force in violation of his Fourth Amendment rights. (Id. at 1). Plaintiff also

9

alleges he was denied assistance of counsel and “a full discovery of unedited video

10

evidence” pertaining to his original arrest and criminal prosecution in violation of his

11

Sixth Amendment rights. (Id.)

12

Plaintiff makes specific allegations toward each of the Defendants. Plaintiff

13

alleges Defendant Williams (1) grabbed Plaintiff while Plaintiff was sitting “in his seat”

14

and compliant with Williams’ instructions, (2) ordered Defendant Fechtelkotter to shoot

15

Plaintiff with a Taser, and (3) interfered with a video recording (apparently of Plaintiff’s

16

arrest). (Id.)

17

Plaintiff alleges Defendant Fechtelkotter shot Plaintiff with a Taser while Plaintiff

18

was standing and while other officers were holding Plaintiff’s arms behind his back. (Id.

19

at 3). Plaintiff also alleges Fechtelkotter later made false statements concerning the

20

events of Plaintiff’s arrest. (Id. at 3-4).

21

Plaintiff alleges Defendants Roby and Spears kneed Plaintiff in the back causing

22

physical injury. (Id. at 4). Plaintiff alleges Roby and Spears later made false statements in

23

Defendant Douglass’ police report concerning these events. (Id.)

24

Plaintiff alleges Defendant McNeil violated Plaintiff’s right to a fair trial and

25

obstructed justice by not providing Plaintiff with an unedited copy of the “car cam”

26
2

27
28

Although Plaintiff captions his Amended Complaint as “Amended supplement to
complaint,” (Doc. 28 at 1), “it is well-established that an amended complaint supersedes
the original, the latter being treated thereafter as non-existent.” Valadez-Lopez v.
Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (citation and internal quotation marks
omitted).
-2-

1

evidence. (Id.)

2

Plaintiff alleges Defendant Douglass, who investigated the circumstances of

3

Plaintiff’s arrest, violated Plaintiff’s right to a fair trial and obstructed justice when he

4

“purposefully overlook [sic] the officers [sic] conflicting, contradictory sworn

5

statements” to “clear his fellow officers of criminal activity.” (Id. at 4-5).
Finally, Plaintiff alleges Defendant Nichols obstructed justice by knowingly using

6
7

“criminally altered evidence” to convict Plaintiff of a crime. (Id. at 5).

8

Plaintiff purports to provide a legal basis for his allegations by including in his

9

Amended Complaint a number of quotations and citations to case law concerning a

10

governmental entity’s liability under 42 U.S.C. § 1983. (Id. at 6-7).

11

II.

Legal Standard

12

A.

Rule 12(b)(6)

13

A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim

14

upon which relief can be granted if it fails to state a cognizable legal theory or fails to

15

allege sufficient facts under a cognizable legal theory. Balistreri v. Pac. Police Dep’t,

16

901 F.2d 696, 699 (9th Cir. 1990). To survive a motion to dismiss, a complaint need

17

contain only “a short and plain statement of the claim showing that the pleader is entitled

18

to relief” such that the defendant is given “fair notice of what the . . . claim is and the

19

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

20

(quoting Fed.R.Civ.P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). But

21

although a complaint “does not need detailed factual allegations,” a plaintiff must “raise a

22

right to relief above the speculative level.” Id. This requires more than merely “a

23

formulaic recitation of the elements of a cause of action.” Id. A complaint must “state a

24

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

25

(quoting Twombly, 550 U.S. at 570). Facial plausibility requires the plaintiff to plead

26

“factual content that allows the court to draw the reasonable inference that the defendant

27

is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely

28

consistent with’ a defendant’s liability, it stops short of the line between possibility and

-3-

1

plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at 557) (internal

2

quotation marks omitted).

3

In reviewing a complaint for failure to state a claim, the Court must “accept as true

4

all well-pleaded allegations of material fact, and construe them in the light most favorable

5

to the non-moving party.” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir.

6

2010). The Court does not have to accept as true “allegations that are merely conclusory,

7

unwarranted deductions of fact, or unreasonable inferences.” Id. However, in “civil rights

8

cases where the plaintiff appears pro se, the [C]ourt must construe the pleadings liberally

9

and must afford plaintiff the benefit of any doubt.” Karim-Panahi v. L.A. Police Dep’t,

10

839 F.2d 621, 623 (9th Cir. 1988). “[B]efore dismissing a pro se civil rights complaint for

11

failure to state a claim, the district court must give the plaintiff a statement of the

12

complaint’s deficiencies.” Id.

13

B.

14

42 U.S.C. § 1983 is “‘not itself a source of substantive rights,’ but merely provides

15

‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490

16

U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)). “To

17

make out a cause of action under section 1983, [a] plaintiff[] must plead that (1) the

18

defendants acting under color of state law (2) deprived plaintiffs of rights secured by the

19

Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir.

20

1986). Accordingly, “[t]he first inquiry in any § 1983 suit, therefore, is whether the

21

plaintiff has been deprived of a right ‘secured by the Constitution and laws.’” Baker, 443

22

U.S. at 140 (quoting 42 U.S.C. § 1983).

23

III.

24
25

42 U.S.C. § 1983

Analysis
As stated, Plaintiff’s Amended Complaint alleges both Fourth and Sixth

Amendment violations giving rise to section 1983 liability. (Doc. 28 at 1).

26

A.

Fourth Amendment

27

Plaintiff alleges two bases for a violation of his Fourth Amendment rights: false

28

arrest and excessive force. (Id.) “A claim for unlawful arrest is cognizable under § 1983

-4-

1

as a violation of the Fourth Amendment, provided the arrest was without probable cause

2

or other justification.” Lacey v. Maricopa Cnty., 693 F.3d 896, 918 (9th Cir. 2012)

3

(quoting Dubner v. City & Cnty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001)). Thus,

4

Plaintiff must plead facts that would show Defendants “ordered or otherwise procured the

5

arrests and the arrests were without probable cause.” Id. Plaintiff’s Amended Complaint

6

recites that Plaintiff was subjected to an unreasonable search and seizure, “falsely

7

arrested,” and “searched without a warrant.” (Doc. 28 at 1). But these allegations are

8

legal conclusions, not facts which, if true, would give rise to a violation of Plaintiff’s

9

Fourth Amendment rights. Because Plaintiff pleads no facts showing that Defendants

10

procured his arrest without probable cause, the Amended Complaint fails to state a claim

11

for section 1983 liability based upon Plaintiff’s allegedly unlawful arrest.

12

Plaintiff also alleges several officers used excessive force during his arrest. A

13

claim for excessive force “in the context of an arrest” is analyzed for a Fourth

14

Amendment violation. Graham, 490 U.S. at 394. The mere use of force during an arrest

15

does not constitute excessive force. See Graham, 490 U.S. at 396 (“. . . the right to make

16

an arrest . . . necessarily carries with it the right to use some degree of physical coercion. .

17

.”). Whether an arresting officer used excessive force depends upon “the facts and

18

circumstances of each particular case, including the severity of the crime at issue,

19

whether the suspect poses an immediate threat to the safety of the officers or others, and

20

whether he is actively resisting arrest or attempting to evade arrest by flight.” Id.

21

Although Defendants argue that Plaintiff “provides no facts surrounding the arrest

22

beyond his blanket allegations that he was beaten, tased, searched, and seized,” (Doc. 29

23

at 3), Plaintiff has pleaded sufficient facts such that his claim of excessive force is

24

“plausible on its face,” see Iqbal, 556 U.S. at 678, even if the details of his arrest are

25

unclear. Plaintiff alleges that Defendant Fechtelkotter shot him with a Taser while

26

Plaintiff was standing and other officers were holding Plaintiff’s arms behind his back.

27

(Doc. 28 at 3). These facts, if true, state a plausible claim that Fechtelkotter used force in

28

-5-

1

excess of that necessary to arrest Plaintiff while he stood with his arms restrained.3

2

Furthermore, because Plaintiff alleges Defendant Williams ordered Fechtelkotter to shoot

3

Plaintiff with the Taser, (id.), Plaintiff states a cognizable claim against Williams as well.

4

See Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1997).

5

Plaintiff also states a cognizable claim against Defendants Spears and Roby for the

6

use of excessive force. Plaintiff alleges that Spears and Roby drove their knees into

7

Plaintiff’s back causing serious, objective physical injuries. (Doc. 28 at 4). Read in

8

context with Plaintiff’s assertion that he was not resisting arrest, this is sufficient to state

9

a claim against Spears and Roby.4

10

B.

Sixth Amendment

11

Plaintiff fails to state a cognizable claim under section 1983 for an alleged

12

violation of his Sixth Amendment rights. “[I]n order to recover damages for allegedly

13

unconstitutional conviction or imprisonment . . . a § 1983 plaintiff must prove that the

14

conviction or sentence has been reversed on direct appeal, expunged by executive order,

15

declared invalid by a state tribunal authorized to make such determination, or called into

16

question by a federal court's issuance of a writ of habeas corpus . . . . A claim for

17

damages bearing that relationship to a conviction or sentence that has not been so

18

invalidated is not cognizable under § 1983.” Heck v. Humphrey, 512 U.S. 477, 486-87

19

(1994). Although Plaintiff alleges that he was denied effective assistance of counsel as

20

well as video evidence possessed by Defendants that Plaintiff believes would have tended

21

to exonerate him, (Doc. 1 at 1, 3), Plaintiff does not allege that the conviction which he

22

seeks to challenge has been reversed. Accordingly, his section 1983 claims for alleged

23

violations of his Sixth Amendment rights are not cognizable.

24
25
26
27

3

The Court notes that Plaintiff may not survive summary judgment absent
significant additional factual development of this claim.
4

28

However, Plaintiff does not plead any facts which, if true, would state a section
1983 claim against Defendants Douglass, McNeil, and Nichols for the use of excessive
force.
-6-

1

C.

2

The Court previously dismissed Defendant City of Show Low Police Department

3

as a non-jural entity not subject to suit and instructed Plaintiff to “not reassert any legal

4

theories against the Show Low Police Department.” (Doc. 27 at 8). However, Plaintiff’s

5

Amended Complaint devotes nearly two pages to a discussion of cases involving the

6

section 1983 liability of a governmental entity pursuant to Monell v. Department of

7

Social Services of City of New York, 436 U.S. 658 (1978). To the extent Plaintiff’s

8

Amended Complaint can be liberally construed as alleging a Monell claim, it fails to state

9

a cognizable claim for relief because none of the remaining Defendants are a

10

City of Show Low Police Department

governmental entity.

11

D.

Plaintiff’s Surreply

12

Plaintiff has filed a surreply to Defendants’ Reply in Support of Defendants’

13

Motion to Dismiss. See (Doc. 33). “Neither [Rule 7] nor the local rules of practice for this

14

District provide for the filing of a surreply and surreplies are not authorized by any other

15

rules of procedure absent express prior leave of the Court.” Millenium 3 Techs. v. ARINC,

16

Inc., 2008 WL 4737887, at *2 (D. Ariz. Oct. 29, 2008). Regardless, the Court has read

17

Plaintiff’s surreply and finds that consideration of the arguments presented therein would

18

not change its ruling.

19

IV.

Conclusion

20

The Court’s prior Order instructed Plaintiff to “clearly identify his legal theories in

21

separate causes of action” and to “set forth ‘who is being sued, for what relief, and on

22

what theory, with enough detail to guide discovery.’” (Doc. 27 at 8). Despite the Court’s

23

liberal construction of Plaintiff’s Amended Complaint, Plaintiff fails to state cognizable

24

claims for relief pursuant to section 1983 based on either his false arrest or violations of

25

his Sixth Amendment rights.

26

For the foregoing reasons,

27

IT IS ORDERED granting in part and denying in part Defendants’ Motion to

28

Dismiss (Doc. 29).

-7-

1
2
3
4

IT IS FURTHER ORDERED granting Defendant Torel Nichols’ Second Motion
to Dismiss (Doc. 30).
IT IS FURTHER ORDERED dismissing with prejudice all claims against
Defendants Douglass, McNeil, and Nichols.

5

IT IS FURTHER ORDERED dismissing with prejudice all claims against

6

Defendants Williams, Fechtelkotter, Spears, and Roby except excessive force. Thus,

7

Plaintiff’s sole remaining claims are the excessive force claims against Defendants

8

Williams, Fechtelkotter, Spears, and Roby.

9
10
11

IT IS FURTHER ORDERED striking Plaintiff’s “Reply to Defendants Counsel
Motion to Dismiss” [sic] (Doc. 33).
Dated this 6th day of March, 2014.

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-