Stypeck v. Clarkdale, City of et al

Filing 70

ORDER the motion to dismiss claims against the City of Clarkdale, Clarkdale City Council, Doug Von Gausig, Richard Dehnert, Curtiss Bohall, Bill Regner,and Scott Buckley (Doc. 45 ) is granted. Plaintiff may file a second amended complaint by May 20, 2016. Signed by Judge David G Campbell on 4/29/2016.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donna L. Stypeck, No. CV-15-08163-PCT-DGC Plaintiff, 10 11 v. 12 ORDER City of Clarkdale, et al., 13 Defendants. 14 15 16 Defendants City of Clarkdale, Clarkdale City Council, Doug Von Gausig, Richard 17 Dehnert, Curtiss Bohall, Bill Regner, and Scott Buckley move to dismiss all claims 18 against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 45. 19 The motion has been fully briefed (Docs. 45, 61, 64), and no party has requested oral 20 argument. For the following reasons, the Court will grant the motion. 21 I. 22 Background. Jonathan Millet is a prosecutor for the Town of Clarkdale and Kathy Parker is his 23 assistant. 24 Buckley are Clarkdale City Council members. Id. at 2. On June 13, 2015, Plaintiff’s dog 25 allegedly injured Defendant Calvert’s horse in Tuzigoot National Monument. Doc. 13 at 26 3-4. In his capacity as Town Prosecutor, Millet sent a letter to Plaintiff on August 3, 27 28 Doc. 13 at 2-3. Defendants Von Gausig, Dehnert, Bohall, Regner, and 2015, asking her to call Parker for a phone interview regarding the “Incident at Tuzigoot Park.” Doc. 1-1. When Plaintiff called, Parker allegedly said: “And here’s how it goes. If you don’t pay the vet bill [for Calvert’s horse], then charges will be filed.” 1 Doc. 13 at 5. Plaintiff accepted this plea bargain, agreeing to pay the vet bill in exchange 2 for Millet’s agreement not to file charges. Doc. 1-1. 3 Plaintiff filed this lawsuit on August 31, 2015. Her amended complaint alleges 4 that Millet and Parker’s conduct violated her constitutional rights. She seeks relief under 5 42 U.S.C. §§ 1983 and 1985. Doc. 13. The amended complaint also alleges that Millet’s 6 conduct was City “protocol,” and that the City “condoned” his actions and “conspired” 7 with him. Id. at 13, 18, 20. Plaintiff also asserts claims for intentional infliction of 8 emotional distress (“IIED”) and extortion. Id. at 19-21. 9 I. Legal Standard. 10 A successful 12(b)(6) motion must show either that the complaint lacks a 11 cognizable legal theory or fails to allege facts sufficient to support its theory. Balistreri 12 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint that sets forth a 13 cognizable legal theory will survive a motion to dismiss as long as it contains “sufficient 14 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 15 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 16 544, 570 (2007)). A claim has facial plausibility when “the plaintiff pleads factual 17 content that allows the court to draw the reasonable inference that the defendant is liable 18 for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). 19 II. Analysis. 20 A. Claims Against the City Council and Its Members. 21 Plaintiff does not plead any facts alleging that the City Council or its individual 22 members committed wrongful acts. In fact, she does not even mention these parties in 23 the specific counts of her amended complaint. Doc. 13. Therefore, all claims against the 24 City Council and its individual members are dismissed. 25 B. Claims Against the City. 26 Defendants argue that the Court should dismiss all §§ 1983 and 1985 claims 27 against the City because a municipality’s liability for purposes of § 1983 “cannot be 28 based solely on respondeat superior.” Doc. 45 at 8. The Court agrees. -2- 1 A municipality cannot be held liable for the torts of its employees “under § 1983 2 on a respondeat superior theory.” Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 3 658, 691 (1978). Rather, a plaintiff in a § 1983 action must plead facts that, if true, show 4 that “a policy, practice, or custom of the entity . . . [was] a moving force behind a 5 violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th 6 Cir. 2011). 7 Plaintiff fails to plead facts establishing that the City violated her constitutional 8 rights. Count II appears to assert Due Process and Equal Protection violations by Millet, 9 which must be § 1983 claims. Because there is no respondeat superior liability under 10 § 1983, however, this claim must be dismissed against the City. Counts IX, XI, and XV 11 allege supervisory liability against the City under § 1983, but include only conclusory 12 allegations, stating that Millet’s conduct was “most likely a protocol” of the City and that 13 the City “condoned” Millet’s actions and “conspired” with him. Doc. 13 at 13, 18, 20. 14 The only fact Plaintiff alleges to support these conclusions, however, is Parker’s 15 statement that charges would be filed if Plaintiff did not pay the vet bill. Id. at 18. 16 Parker’s statement is not sufficient to show a “policy, practice, or custom” of the City 17 that violated Plaintiff’s constitutional rights. Dougherty, 654 F.3d at 900. Therefore, 18 Plaintiff’s § 1983 claims against the City are dismissed. Because Plaintiff is unable to 19 state a claim under § 1983, her § 1985 claims must also be dismissed. Olsen v. Idaho 20 State Bd. of Med., 363 F.3d 916, 930 (9th Cir. 2004) (“[T]o state a claim for conspiracy 21 under § 1985, a plaintiff must first have a cognizable claim under § 1983.”). 22 Defendants argue that Plaintiff’s state law claims against the City are barred 23 because she failed to comply with the 180-day notice requirement of A.R.S. § 12- 24 821.01(A). Doc. 45 at 13. The Court agrees. It appears that Plaintiff’s cause of action 25 accrued between August 3 and 11, 2015. Doc. 13 at ¶¶ 25-26. More than 180 days have 26 passed, and Plaintiff does not dispute that she failed to serve a notice of claim on the 27 City. Doc. 61 at 14. Plaintiff’s state claims against the City (and the City Council and its 28 members) are therefore barred under Arizona law. -3- 1 IV. Leave to Amend. 2 “A pro se litigant must be given leave to amend his or her complaint unless it is 3 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 4 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (quotation marks 5 omitted). But “[a] district court does not err in denying leave to amend where the 6 amendment would be futile.” Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009). 7 Because Plaintiff’s state law claims are barred by § 12-821.01(A), she may not 8 amend these claims. The Court cannot conclude, however, that Plaintiff is unable to 9 plead facts that might state a claim under §§ 1983 and 1985 against the City, the City 10 Council, or its individual members. The Court therefore will grant Plaintiff leave to 11 amend these claims. Plaintiff has had two opportunities to state a claim against these 12 Defendants. The Court cautions Plaintiff that this third opportunity is her last. If 13 Plaintiff again fails to state a claim, further amendments will not be allowed. 14 IT IS ORDERED: 15 1. The motion to dismiss claims against the City of Clarkdale, Clarkdale City 16 Council, Doug Von Gausig, Richard Dehnert, Curtiss Bohall, Bill Regner, 17 and Scott Buckley (Doc. 45) is granted. 18 2. Plaintiff may file a second amended complaint by May 20, 2016. 19 20 21 Dated this 29th day of April, 2016. 22 23 24 25 26 27 28 -4-

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