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