Hauser v. Smith et al

Filing 101

ORDER: The reference to the Magistrate Judge is withdrawn as to Defendant Brnovich's Motion to Dismiss 67 , State Bar of Arizona Defendants' Motion to Dismiss 82 and Motion to Strike 98 , and Yavapai County Defendants' Motion to Di smiss 83 and Motion to Strike 98 . State Bar of Arizona Defendants' Motion to Strike 98 and Yavapai County Defendants' Motion to Strike 97 are granted; the Clerk of Court must strike Plaintiff's filings at Doc. 92 and Doc. [95 ] from the docket. Defendant Brnovich's Motion to Dismiss 67 is granted; the claims against Brnovich are dismissed with prejudice. State Bar of Arizona Defendants' Motion to Dismiss 82 is granted; the claims against the State Bar Arizona Defendants are dismissed with prejudice. Yavapai County Defendants' Motion to Dismiss 83 is granted in part and denied in part. See document for further details. Signed by Senior Judge James A Teilborg on 6/03/2021. (REK)

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1 WO JDN 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Carolin Isabelle Hauser, 10 11 12 No. CV 20-08138-PCT-JAT (JFM) Plaintiffs, v. ORDER Elijah M. Smith, et al., 13 Defendants. 14 15 Plaintiff Carolin Isabelle Hauser brought this pro se civil rights action under 42 16 U.S.C. § 1983, various federal criminal statutes, and state law against State Attorney 17 General Mark Brnovich, 19 Yavapai County officials,1 and 3 employees from the State 18 Bar of Arizona.2 (Doc. 37.) Before the Court are the following motions: · Defendant Mark Brnovich’s Motion to Dismiss for failure to state a claim (Doc. 19 20 21 22 67); · State Bar of Arizona Defendants’ Motion to Dismiss for lack of jurisdiction and failure to state a claim (Doc. 82); 23 24 25 26 27 28 1 The Yavapai County Defendants are Elijah M. Smith, Taylor Mickle, Christopher Eller, William N. Lundy, Scott Mascher, Justin L. McQueary, Jeff Newnum, Brian Hunt, Richard Martin, Sheila Polk, Michael E. Cordrey, Christopher G. Michalsky, James R. Bigbee, Alexander J. Toth, Craig I. Brown, Rowle P. Simmons, Thomas Thurman, Randy Garrison, and Mary Mallory. (Docs. 33, 83.) 2 The State Bar of Arizona Defendants are Jim Lee, Jackie Brokaw, and Karen Calcagno. (Docs. 33, 82.) · Yavapai County Defendants’ Motion to Dismiss for failure to state a claim (Doc. 1 2 83); · Yavapai County Defendants’ Motion to Strike Plaintiff’s Surresponse (Doc. 97); 3 4 and · State Bar of Arizona Defendants’ Motion to Strike Plaintiff’s Surresponse (Doc. 5 6 98). 7 The Court will grant the Motions to Strike, grant Brnovich’s Motion to Dismiss, 8 grant the State Bar of Arizona Defendants’ Motion to Dismiss, and grant in part and deny 9 in part the Yavapai County Defendants’ Motion to Dismiss. 10 I. Background 11 In her 106-page First Amended Complaint, Hauser sets forth 26 causes of action 12 against the named Defendants. (Doc. 33.) Hauser’s claims stem from an incident on the 13 morning of December 14, 2019, when she called 9-1-1 for assistance during a domestic 14 dispute on her property in Rimrock, Arizona. (Id. ¶ 1.) Hauser alleges that Yavapai 15 County Sheriff’s deputies Smith and Eller responded and interrogated her. (Id. ¶¶ 1–2.) 16 Deputy Mickel arrived and stood by during this interrogation. (Id. ¶¶ 2–3.) 17 At one point, Smith asked Hauser to get into his patrol car, and when Hauser said 18 that she did not want to, Smith told her she was under arrest. (Id. ¶ 7.) Hauser then ran 19 toward her daughter and fiancé, who were on the scene, and Smith suddenly grabbed 20 Hauser’s arms behind her back and tackled her, which caused her to hit the gravel face 21 first. (Id. ¶ 8.) Smith, Mickle, and Eller were all on top of Hauser, slamming her face 22 down in the gravel, and the force resulted in life-threatening esophageal injuries and 23 pneumomediastinum (abnormal presence of air or gas in the membrane between the 24 lungs). (Id. ¶¶ 8, 26, 28, 30–31.) Smith took Hauser to the Camp Verde Jail, where she 25 was held from approximately 8:50 a.m. until 2:00 p.m. (Id. ¶¶ 11, 21.) 26 After her release, Hauser went to Verde Valley Medical Center in Cottonwood for 27 emergency treatment, and she was eventually transported via ambulance to the Flagstaff 28 Medical Center. (Id. ¶¶ 22–25.) -2- 1 Hauser asserts claims for false arrest and excessive force in violation of the Fourth 2 Amendment (Id. ¶¶ 77–95), and claims under Monell v. Department of Social Services, 3 436 U.S. 658 (1978), for negligent training and supervision and “unconstitutional 4 ratification of illegal conduct.” 5 committed criminal and seditious conspiracy and treason and acted as agents of foreign 6 principals and as a “de factor corporate state.” (Id. ¶¶ 105–159.) She further alleges that 7 Defendants violated commitments for United States’ contributions to international 8 financial institutions (Id. ¶¶ 160–163); acted as agents of international criminal police 9 organizations (Id. ¶¶ 164–167); and violated federal criminal statutes and laws related to 10 foreign relations (Id. ¶¶ 168–191, 211–215). Finally, Hauser asserts state law claims of 11 battery, negligence, and negligent training/supervision. (Id. ¶¶ 192–210.) In her Prayer 12 for Relief, Hauser seeks damages, declaratory and injunctive relief in the form of 13 remedying unconstitutional statutes and policies, costs and fees, and any other relief 14 deemed proper. (Id. at 48–49.) (Id. ¶¶ 96–104.) Hauser alleges that Defendants 15 Brnovich and the Yavapai County Defendants move to dismiss under Federal Rule 16 of Civil Procedure 12(b)(6) for failure to state a claim (Docs. 67, 83), and the State Bar of 17 Arizona Defendants move to dismiss under Rule 12(b)(1) and (6) for lack of jurisdiction 18 and failure to state a claim. (Doc. 82.) 19 II. Motions to Strike 20 After the parties fully briefed the above Motions to Dismiss, Hauser filed 21 surresponses to each of the three Motions. (Docs. 92–93, 95.) The State Bar of Arizona 22 Defendants and the Yavapai County Defendants each move to strike the surresponse filed 23 in response to their Motions. (Docs. 97–98.) 24 Surresponses are not authorized by the Federal or Local Rules of Civil Procedure 25 absent prior leave of the Court. See Padilla v. Bechtel Const. Co., No. CV 06-286-PHX- 26 LOA, 2007 WL 625927, at *1 (D. Ariz. Feb. 27, 2007). Hauser’s surresponses were 27 improper because they were filed without leave of the Court. 28 Defendants did not submit any new evidence with their respective Replies, this is not an -3- Further, because 1 instance were surresponses would be warranted. The Motions to Strike will therefore be 2 granted. 3 III. Yavapai County Defendants’ Motion to Dismiss 4 A. 5 Dismissal of a complaint, or any claim within it, for failure to state a claim under 6 Rule 12(b)(6) may be based on either a “‘lack of a cognizable legal theory’ or ‘the 7 absence of sufficient facts alleged under a cognizable legal theory.’” 8 Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121–22 (9th Cir. 2008) (quoting 9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 10 whether a complaint states a claim under this standard, the allegations in the complaint 11 are taken as true and the pleadings are construed in the light most favorable to the 12 nonmovant. Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 13 2007). A pleading must contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not 15 necessary; the statement need only give the defendant fair notice of what . . . the claim is 16 and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) 17 (internal quotation omitted). To survive a motion to dismiss, a complaint must state a 18 claim that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell 19 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 20 when the plaintiff pleads factual content that allows the court to draw the reasonable 21 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 22 A motion to dismiss is based on the pleadings, and if a court considers evidence 23 outside the pleadings, it must normally convert the Rule 12(b)(6) motion into a Rule 56 24 motion for summary judgment. See Fed. R. Civ. P. 12(b); United States v. Richie, 342 25 F.3d 903, 907–08 (9th Cir. 2003). “A court may, however, consider certain materials— 26 documents attached to the complaint, documents incorporated by reference in the 27 complaint, or matters of judicial notice—without converting the motion to dismiss into a 28 motion for summary judgment.” Id. at 908. Federal Rule of Civil Procedure 12(b)(6) -4- Johnson v. 1 B. 2 The Yavapai County Defendants argue that Hauser cannot assert a private right of 3 action based on the federal statutes cited in Causes of Action Five through Twenty-two 4 and Twenty-six. (Doc. 83 at 13–14.) They also argue that Hauser fails to state a claim 5 for false arrest or excessive force against Smith, Mickle, or Eller in Causes of Action One 6 and Two; that she fails to state a claim for failure to train/supervise or for ratification 7 against the remaining Yavapai County Defendants; that all Yavapai County Defendants 8 are entitled to qualified immunity; and that Hauser failed to serve a Notice of Claim as 9 required under state law for her claims in Causes of Action Twenty-three through 10 Discussion Twenty-five. (Id. at 2–13, 14–15.) 11 1. Causes of Action Five through Twenty-two and Twenty-six 12 The claims asserted in Causes of Action Five through Twenty-two and Twenty-six 13 are brought under various federal criminal statutes. (Doc. 33.) Federal criminal statutes 14 provide no basis for civil liability. See Sears v. Las Vegas Metro. Police Dep’t, No. 2:19- 15 cv-01196-JAD-VCF, 2019 WL 3502890 (D. Nev. Aug. 1, 2019) (a plaintiff cannot bring 16 criminal claims in a civil action). Other federal statutes cited by Hauser are completely 17 inapplicable and fail to establish a basis for or jurisdiction over her claims. Accordingly, 18 the Yavapai County Defendants’ Motion will be granted as to the following Causes of 19 Action: 20 · Fifth Cause of Action under 18 U.S.C. § 241 (conspiracy). See Aldabe v. 21 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (18 U.SC. § 241 provides no basis for civil 22 liability). 23 · Sixth Cause of Action under 18 U.S.C. § 2381 (treason). See Ponvanit v. 24 Superior Court of California, No. CV 17-4054-FMO (JEM), 2018 WL 1135380, at *9 25 (C.D. Cal. Jan. 31, 2018) (18 U.S.C. § 2381 is criminal statute for which there is no 26 private right of action), report and recommendation adopted, No. CV 17-4054-FMO 27 (JEM), 2018 WL 1135502 (C.D. Cal. Feb. 27, 2018). 28 -5- 1 · Seventh and Eighth Causes of action under 28 U.S.C. § 2384 (seditious 2 conspiracy/advocating overthrow of government). See Suter v. Denton, No. 3:18-cv- 3 01988-N, 2019 WL 5887290, at *4 (N.D. Texas July 16, 2019) (noting that 28 U.S.C. 4 § 2384 does not provide jurisdiction for civil action as criminal statutes cannot be 5 enforced by civil action). 6 7 · Ninth Cause of Action under 18 U.S.C. § 219 (acting as agents of foreign principals). 8 · Tenth Cause of Action under 18 U.S.C. § 912 (impersonating United States 9 officer). See Frison v. Zebro, 339 F.3d 994, 998–1000 (8th Cir. 2003) (no private right of 10 action for violation of proscription against impersonating federal officer under 18 U.S.C. 11 § 912). 12 13 · Eleventh Cause of Action under 18 U.S.C. § 2 (punishable as principal for offense against the United States). 14 · Twelfth Cause of Action under 22 U.S.C. § 611 (Foreign Agents Registration 15 Act). See Comm. for a Free Namibia v. South West Africa People’s Org., 544 F. Supp. 16 722, 725–726 (D.D.C. 1982) (enforcement of the Foreign Agents Registration Act is left 17 to the federal government and does not provide a private cause of action). 18 19 20 21 22 23 · Thirteenth Cause of Action under 18 U.S.C. § 951 (agents of foreign governments). · Fourteenth Cause of Action under 22 U.S.C. §§ 611, 612 (foreign agent registration). · Fifteenth Cause of Action under 18 U.S.C. §§ 219 (acting as agents of foreign principals), 951 (acting as agents of foreign governments) and 22 U.S.C. § 612. 24 · Sixteenth Cause of Action under 22 U.S.C. § 262c (commitments for 25 contributions to international financial institutional fostering economic development in 26 less developed countries). Section 262c sets out congressional findings in support of 27 continued United States participation in international financial institutions that assist in 28 -6- 1 fostering economic development in less developed countries and it does not provide a 2 basis for a civil suit. 3 · Seventeenth Cause of Action under 22 U.S.C. § 263 (International Prison 4 Commission). Section 263 states that the United States shall continue as a member of the 5 International Prison Commission and it does not provide a basis for a civil suit. 6 · Eighteenth Cause of Action under 22 U.S.C. § 284 (membership acceptance in 7 International Development Association). Section 284 authorizes the President to accept 8 membership for the United States in the International Development Association and it 9 does not provide a basis for a civil suit. 10 · Nineteenth and Twentieth Causes of Action under 22 U.S.C. §§ 286, 286g (the 11 Bretton Woods Agreements Act). 12 membership for the United States in the International Monetary Fund and does not 13 provide a basis for a civil suit. Section 286g is a jurisdiction and venue statute, but 14 because the United States did not bring this action, the statute is not applicable, and it 15 fails to provide for jurisdiction over Hauser’s claims. See Pacheco v. Owens, Civil No. 16 03-841 WJ/ACT, 2003 WL 27384881, at *2 (D. N.M. Oct. 1, 2003). Section 286 authorizes the President to accept 17 · Twenty-first Cause of Action under 18 U.S.C. § 7 (special maritime and 18 territorial jurisdiction defined). Section 7 provides for federal jurisdiction over criminal 19 acts occurring within the defined territory and it does provide a basis for a civil suit. 20 · Twenty-second Cause of Action under 8 U.S.C. § 1481 (loss of nationality). 21 Section 1481 sets out when a citizen shall lose his or her nationality and it does not 22 provide a basis for a civil suit. 23 · Twenty-sixth Cause of Action under 18 U.S.C. § 2340 (torture). See Felder v. 24 Howerton, 240 F. App’x 404, 406 (11th Cir. Sept. 13, 2007) (section 2340 assigns 25 criminal liability to persons who commit or conspire to commit torture outside of the 26 United States). 27 28 -7- 1 Causes of Action Five through Twenty-two and Twenty-six will be dismissed, and 2 because these claims cannot be cured by amendment, they will be dismissed with 3 prejudice. 4 5 Causes of Action One and Two—False Arrest and Excessive Force 6 Hauser asserts Fourth Amendment claims of false arrest and excessive force 7 against Smith, Mickle, and Eller based on their alleged actions on December 14, 2019. 8 (Doc. 33.) Yavapai County Defendants argue that Hauser’s allegations regarding her 9 arrest are incomplete and not “plausibly pled.” (Doc. 83 at 8.) They further argue that 10 Smith, Mickle, and Eller are entitled to qualified immunity as to these two claims. (Id. at 11 5–10.) 12 2. a. Excessive Force 13 The Fourth Amendment provides that the “right of the people to be secure in their 14 persons . . . against unreasonable searches and seizures, shall not be violated . . . .” Heien 15 v. N. Carolina, 574 U.S. 54, 60 (2014); U.S. Const. amend. IV. The relevant inquiry for 16 determining a Fourth Amendment violation is whether the defendant’s actions were 17 objectively reasonable in light of the facts and circumstances confronting him, without 18 regard to his underlying intent or motivation. Graham v. Connor, 490 U.S. 386, 397 19 (1989). In Graham, the Supreme Court set out the test for “objective reasonableness,” 20 which balances the nature and quality of the intrusion on the plaintiff’s interests against 21 the countervailing governmental interests at stake. Id. at 396–97. Factors to consider 22 include the severity of the crime at issue, whether the plaintiff posed an immediate threat 23 to the safety of defendants or others, and whether the plaintiff was actively resisting 24 arrest or attempting to evade arrest by flight. Id. at 396. 25 Hauser’s facts show that she called the police to her property for assistance with a 26 domestic dispute, and when Smith, Mickle, and Eller arrived, they conducted a pat down 27 for weapons and determined that Hauser was unarmed. (Doc. 33 ¶¶ 1, 4, 6, 34.) At the 28 time, Hauser—who was 41-years old—was wearing her pajamas and a coat. (Id. ¶¶ 5, -8- 1 34.) Defendant officers spoke to Hauser and her fiancé, and then Smith suggested that 2 Hauser wait in his patrol car because she was cold. (Id. ¶¶ 2, 6, 7.) Hauser stated she did 3 not want to get in his patrol car, and Smith told her, “well, then, you are under arrest.” 4 (Id. ¶ 7.) Hauser responded by attempting to run to her daughter and fiancé, but Smith 5 grabbed her arms, tackled her to the dirt, and she hit the gravel face first, and then Smith, 6 Mickle, and Eller were all on top of Hauser, which she estimated to be approximately 600 7 pounds of total weight. (Id. ¶ 8.) Hauser’s resulting injuries to her neck, esophagus, and 8 lungs required emergency care, hospital admittance, and transport to a higher level of 9 care in Flagstaff. (Id. ¶¶ 6–22, 28, 31, 36.) 10 Affording Hauser the benefit of any doubt, her allegations regarding Smith’s take 11 down after he grabbed her arms, the three officers’ pile up onto her body once she was on 12 the ground, and the significance of her injuries as a result, support a plausible inference 13 that the three Defendants’ actions were objectively unreasonable. See Blankenhorn v. 14 City of Orange, 485 F.3d 463, 477 (9th Cir. 2007) (“even when some force is justified the 15 amount actually used may be excessive”) (citations and internal quotation marks 16 omitted). Hauser therefore states a plausible Fourth Amendment claim for excessive 17 force. 18 b. False Arrest 19 Under the Fourth Amendment, to state a claim for false arrest, a plaintiff must 20 allege facts to support that there was no probable cause for the arrest. See Cabrera v. 21 City of Huntingdon Park, 159 F.3d 374, 380 (9th Cir. 1998) (citation omitted). Probable 22 cause exists when an officer has reasonably trustworthy information of facts and 23 circumstances that are sufficient to justify the belief that an offense has been or is being 24 committed. Stoot v. City of Everett, 582 F.3d 910, 918 (9th Cir. 2009) (citing Brinegar v. 25 United States, 338 U.S. 160, 175–76 (1949) (internal quotation marks omitted)). 26 Hauser’s facts show that she called the police for assistance in a domestic dispute, 27 the officers spoke to her and her fiancé, and Smith told Hauser she was under arrest only 28 after Hauser declined his offer to wait in his patrol car to avoid the cold. Although -9- 1 Hauser’s facts are thin, when construed liberally, those facts support that there was no 2 probable cause for her arrest; thus, Hauser sufficiently states a plausible Fourth 3 Amendment claim for false arrest. 4 c. Qualified Immunity 5 Defendants assert that they are entitled to qualified immunity. (Doc. 83 at 5–12.) 6 Government officials enjoy qualified immunity from civil damages unless their conduct 7 violates “clearly established statutory or constitutional rights of which a reasonable 8 person would have known.” 9 deciding if qualified immunity applies, the Court must determine: (1) whether the facts 10 alleged show the defendant’s conduct violated a constitutional right; and (2) whether that 11 right was clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 12 223, 230–32, 235–36 (2009) (courts may address either prong first depending on the 13 circumstances in the particular case). In the qualified immunity analysis, the court must 14 consider all disputed facts in the light most favorable to the nonmovant. Isayeva v. 15 Sacramento Sheriff’s Dep’t, 872 F.3d 938, 946 (9th Cir. 2017). Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In 16 For a right to be clearly established there does not have to be a case directly on 17 point; however, “existing precedent must have placed the statutory or constitutional 18 question beyond debate.” White v. Pauly, 137 S. Ct. 548, 551 (2017) (quoting Mullenix 19 v. Luna, 577 U.S. 7, 12 (2017)). Clearly established law “must be particularized to the 20 facts of the case,” and “should not be defined at a high level of generality.” White, 137 S. 21 Ct. at 552 (quotation and citation omitted). A right is clearly established when case law 22 has been “earlier developed in such a concrete and factually defined context to make it 23 obvious to all reasonable government actors, in the defendant’s place, that what he is 24 doing violates federal law.” Shafer v. Cnty. of Santa Barbara, 868 F.3d 1110, 1117 (9th 25 Cir. 2017) (citing White, 137 S. Ct. at 551). 26 Once the right at issue is defined, the court must then “identify a case where an 27 officer acting under similar circumstances as [the defendant] was held to have violated” 28 that right. Id. If there is no such case, then the right was not clearly established. See id. - 10 - 1 at 1117–18. “This is not to say that an official action is protected by qualified immunity 2 unless the very action in question has previously been held unlawful, but it is to say that 3 in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 4 U.S. 730, 739 (2002) (internal citations omitted). “The Supreme Court has made clear 5 that ‘officials can still be on notice that their conduct violates established law even in 6 novel factual circumstances.’” Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) 7 (quoting Hope, 536 U.S. at 741). This principle is particularly relevant “in the context of 8 Fourth Amendment cases, where the constitutional standard—reasonableness—is always 9 a very fact-specific inquiry.” Id.; see Drummond v. City of Anaheim, 343 F.3d 1052, 62 10 (9th Cir. 2003) (holding that “no federal case directly on point [was needed] to establish” 11 that the conduct at issue violated clearly established law and constituted excessive force). 12 As stated above, Hauser alleges a cognizable excessive force claim against Smith, 13 Mickle, and Eller. In support of their qualified immunity argument, the Yavapai County 14 Defendants rely on Bennett v. Gow, which held that qualified immunity was properly 15 granted where an officer pushed an arrestee to the ground and used minor force to 16 handcuff him. (Doc. 83 at 9, citing 345 F. App’x 286, 287 (9th Cir. 2009).) But Bennett 17 is not analogous to the instant action, where Hauser alleges that the three Defendants 18 used significant force when Smith tackled her and they all got on top of her after she was 19 on the ground. 20 The Yavapai County Defendants also rely on Jackson v. Bremerton, which held 21 that where the plaintiff actively interfered with the arrest of her son and participated in a 22 “melee,” the defendant officers’ use of force in effecting her arrest was not excessive. 23 268 F.3d 646, 651, 653 (9th Cir. 2001). Thus, in Jackson, qualified immunity was 24 granted on the first prong of the analysis—whether there was a constitutional violation. 25 Here, the Court has already determined that Hauser’s facts support a Fourth Amendment 26 violation. 27 Underlying the Supreme Court’s holding in Graham is the principle that force is 28 only justified when there is a need for force. See Graham, 490 U.S. at 396; Blankenhorn, - 11 - 1 485 F.3d at 481; Alexander v. City and Cnty. of S.F., 29 F.3d 1355, 1367 (9th Cir. 1994). 2 As mentioned above, the Ninth Circuit has stated that where some force is justified, “the 3 amount actually used may be excessive.” Blankenhorn, 485 F.3d at 477. In 2007, the 4 Ninth Circuit held that a reasonable jury could find that defendant officers’ gang tackle of 5 a suspect during an arrest for a minor crime was unreasonable and that the right at issue 6 was clearly established. 7 Blankenhorn would have put Smith, Mickle, and Eller on notice that tackling and piling 8 onto an unarmed woman for a minor crime—or no crime—was a violation of her Fourth 9 Amendment rights. 10 Id. at 480–481. The principles set out in Graham and The Court will deny Defendants’ request for dismissal of the excessive force claim based on qualified immunity. 11 As to the false arrest claim, the Yavapai County Defendants base their qualified 12 immunity argument solely on the first prong. (Doc. 83 at 8.) They contend that for 13 qualified immunity purposes, officers need only show that it is reasonably arguable that 14 there was probable cause for arrest, and Hauser’s allegations cannot get over this 15 threshold. (Id.) The Court has already determined that, construed liberally, Hauser’s 16 facts support a false arrest claim. Indeed, there are no facts in the First Amended 17 Complaint that the officers had any cause to arrest Hauser. Therefore, at this stage, the 18 request for qualified immunity as to this claim will be denied. 19 3. Causes of Action Three and Four—Monell Claims 20 In her Third Cause of Action, Hauser sets forth a claim under Monell for failure to 21 train/supervise against 20 of the named Defendants—all Defendants except Smith, 22 Mickle, and Eller. (Doc. 33 ¶¶ 96–98.) In her Fourth Cause of Action, Hauser asserts a 23 Monell claim for ratification of unconstitutional conduct against the same 20 Defendants. 24 (Id. ¶¶ 100, 103.) 25 capacities.” (Id. ¶¶ 98, 103.) Hauser asserts that these Defendants are sued in their “personal 26 The Yavapai County Defendants argue that Hauser fails to state that any the 27 named Yavapai County Defendants participated in the events giving rise to these claims 28 or that any of them were aware of a deficiency in training, and she fails to allege how a - 12 - 1 failure to train or supervise caused her injuries or what prior pattern of individual or 2 institutional conduct existed. (Doc. 83 at 11.) The Yavapai County Defendants further 3 argue that Hauser fails to allege that any individual Yavapai County Defendant engaged 4 in the ratification, knew of unconstitutional behavior, or had any knowledge regarding the 5 incident that occurred on December 14, 2019. (Id. at 12.) 6 a. Monell Liability 7 Under Monell, a plaintiff may bring suit against a municipality when she has 8 suffered a civil rights violation caused by a custom, practice, or policy created by the 9 municipality. See City of Canton v. Harris, 489 U.S. 378, 385 (1989); Monell, 436 U.S. 10 at 690–691. 11 capacity) or a State entity. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70 12 (1989) (States are protected by the Eleventh Amendment while municipalities are not, 13 and Monell is limited to “local government units,” which are not considered part of the 14 State for Eleventh Amendment purposes). Thus, a Monell claim is a suit against a local 15 government unit or entity. A suit against a defendant in his or her official capacity 16 represents another way of pleading an action against an entity of which the defendant is 17 an agent. Monell, 436 U.S. at 690 n.55. It follows that Hauser’s claims under Monell 18 must be brought against defendant officers in their official capacity, not their personal 19 capacity. Monell liability cannot attach to an individual (in his or her personal 20 The distinction between individual and official capacity claims can be difficult to 21 understand, even for lawyers. See VanHorn v. Oelschlager, 502 F.3d 775, 779 (8th Cir. 22 2007) (state officials misconstrued the differences between official and individual 23 capacity claims and the immunities available). The Ninth Circuit has cautioned that a pro 24 se litigant’s failure to understand the legal significance between official and individual 25 capacity claims cannot be taken advantage of for the purpose of dismissing claims. 26 Mitchell v. Washington, 818 F.3d 436, 442 & n.3 (9th Cir. 2016) (the record 27 demonstrated that the plaintiff did not understand the legal significance between official 28 versus personal capacity claims; thus, he was not bound by his deposition testimony - 13 - 1 stating that he sued the defendants only in their official capacities, and his damages 2 claims against the defendants in their individual capacities were not barred even though 3 the plaintiff did not contest the district court’s finding that those claims were barred). 4 Accordingly, the Court will construe Hauser’s Monell claims in Causes of Action Three 5 and Four as alleged against the named Defendants in their official capacities. 6 b. Failure to Train/Supervise 7 A local government may be held liable under § 1983 for a constitutional violation 8 if that violation occurred as a result of the municipality’s official policy or custom. 9 Monell, 436 U.S. at 694. “Official municipal policy includes the decisions of a 10 government’s lawmakers, the acts of its policymaking officials, and practices so 11 persistent and widespread as to practically have the force of law.” Connick v. Thompson, 12 563 U.S. 51, 61 (2011). A municipality may also be liable if it has a policy of inaction 13 and such inaction amounts to a failure to protect constitutional rights. City of Canton v. 14 Harris, 489 U.S. 378, 388 (1989). 15 “[A] local government’s decision not to train certain employees about their legal 16 duty to avoid violating citizens’ rights may rise to the level of an official government 17 policy for purposes of § 1983.” Connick, 563 U.S. at 60. To support a Monell claim for 18 failure to train under § 1983, a plaintiff must allege facts demonstrating that the local 19 government’s failure to train amounts to “deliberate indifference to the rights of persons 20 with whom the [untrained employees] come into contact.” Connick, 563 U.S. at 61 21 (citing Canton, 489 U.S. at 388). This deliberate indifference standard is an objective 22 standard, and it is satisfied only when “a § 1983 plaintiff can establish that the facts 23 available to . . . policymakers put them on actual or constructive notice that the particular 24 omission [or act] is substantially certain to result in the violation of the constitutional 25 rights of their citizens.” Castro v. Cnty. of Los Angeles, 797 F.3d 654, 676 (9th Cir. 26 2015). Thus, to maintain a failure to train claim, a plaintiff must allege facts showing a 27 “pattern of violations” that amounts to deliberate indifference and that the governmental 28 entity had actual or constructive notice of those violations. Connick, 563 U.S. at 72. - 14 - 1 Similarly, to properly allege a claim for failure to supervise, a plaintiff must allege facts 2 demonstrating that the supervision was “sufficiently inadequate” to amount to “deliberate 3 indifference.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011). 4 To sufficiently plead a Monell claim and withstand a Rule 12(b)(6) motion to 5 dismiss, allegations in a complaint “may not simply recite the elements of a cause of 6 action, but must contain sufficient allegations of underlying facts to give fair notice and 7 to enable the opposing party to defend itself effectively.” AE ex rel. Hernandez v. Cnty. 8 of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (quoting Starr v. Baca, 652 F.3d 1202, 1216 9 (9th Cir. 2011)). 10 Here, the Court has found that Hauser sufficiently states Fourth Amendment 11 claims against Smith, Mickle, and Eller for false arrest and excessive force. But Hauser 12 fails to allege facts to show that Yavapai County has a training policy that amounted to 13 deliberate indifference to individuals’ constitutional rights. 14 conclusory fashion that the named Defendants “failed to institute, require, and enforce 15 proper and adequate training and supervision on interacting and dealing with Citizens” 16 and that “the need for such training and supervision was obvious especially in the area of 17 excessive force.” (Doc. 33 ¶ 98.) Instead, she states in 18 As Defendants note, Hauser lumps all the Defendants together such that it is not 19 clear which Defendants are policymakers for the purpose of a Monell claim. (See id.; 20 Doc. 83 at 11.) Hauser also alleges that Defendants’ failure to train and supervise 21 resulted in a violation of her Fourth Amendment rights; that Defendants failed to train 22 employees on how to arrest an unarmed citizen, how to recognize a call for assistance as 23 a common tool used by citizens to cope with interpersonal relationships, and how to 24 avoid using excessive force. (Doc. 33 ¶ 98.) These allegations appear to simply recite 25 the elements of a Monell claim. More importantly, Hauser’s allegations do not provide 26 any specifics about knowledge any policymaker had regarding any deficiencies in 27 Yavapai County’s deputy training program or about how any policymaker consciously or 28 deliberately disregarded a potential risk by allowing a deficiency in its training to - 15 - 1 continue. Nor does Hauser allege any other specific instances of similar constitutional 2 violations to show a pattern of such violations resulting from the alleged deficient 3 training. A single incident is insufficient to prove a policy or custom of inadequate 4 training, notice, or deliberate indifference on the part of any named Defendant. See 5 Connick, 563 U.S. at 72. 6 7 For these reasons, Hauser fails to state a Monell claim in Cause of Action Three, and the Yavapai County Defendants’ Motion to Dismiss will be granted as to this claim. 8 c. Ratification 9 A plaintiff may claim Monell liability where an “official with final policy-making 10 authority ratified a subordinate’s unconstitutional decision or action and the basis for it.” 11 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992). 12 knowledge of an unconstitutional act does not, by itself, constitute ratification.” Christie 13 v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). Nor does a policymaker’s mere refusal to 14 overrule a subordinate’s completed act constitute approval. 15 requires the authorized policymaker to make a “conscious, affirmative choice.” Gillette, 16 979 F.2d at 1347. The elements of ratification include the act of approval, and that the 17 ratification was (1) the cause in fact, and (2) the proximate cause of the constitutional 18 deprivation. Arnold v. Int’l Bus. Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). 19 Therefore, to show ratification, a plaintiff must show that a final policymaker made a 20 deliberate choice to endorse the subordinate’s actions and that that ratification caused the 21 constitutional violation. Id.; see Sheehan v. City and Cnty. of S.F., 743 F.3d 1211, 1231 22 (9th Cir. 2014). Id. “A policymaker’s Rather, ratification 23 As with her failure-to-train/supervise claim, Hauser lumps together all Yavapai 24 County Defendants in her ratification claim; thus, she fails to identify a policymaker who 25 ratified a subordinate’s unconstitutional action. (Doc. 33 ¶ 103.) Hauser also fails to 26 allege a “conscious, affirmative choice” and knowledge of the excessive force and false 27 arrest committed by Smith, Mickle, and Eller, and she fails to allege how the ratification 28 of the officers’ conduct caused a constitutional violation. See Gillette, 979 F.2d at 1347. - 16 - 1 Hauser’s general and conclusory allegations that all Defendants ratified the 2 unconstitutional actions of Smith, Mickle, and Eller and that they approved the actions 3 and cleared these officers of any improper conduct are insufficient. In short, Hauser’s 4 allegations do not plausibly state a claim for Monell liability under a ratification theory. 5 See Christie, 176 F.3d at 1238. The Yavapai County Defendants’ Motion to Dismiss will 6 be granted as to the ratification claim in Cause of Action Four. 7 4. Causes of Action Twenty-three through Twenty-five 8 In Cause of Action Twenty-three, Hauser alleges a state law claim of battery 9 against Smith, Mickle, and Eller. (Doc. 33 ¶¶ 192–198.) In Cause of Action Twenty- 10 four, she alleges a state law claim of negligence against all Defendants. (Id. ¶¶ 199–204.) 11 And in Cause of Action Twenty-five, Hauser alleges a state law claim of failure to 12 train/supervise against all the Yavapai County Defendants except Smith, Mickle, and 13 Eller. (Id. ¶¶ 205–210.) The Yavapai County Defendants argue that all three state law 14 claims must be dismissed because Hauser failed to provide a Notice of Claim as required 15 under Arizona Revised Statutes § 12-821.01. (Doc. 83 at 14–15.) 16 Under Arizona state law, a plaintiff must file a Notice of Claim with the public 17 employee within 180 days of the incident from which the claim arose. Ariz. Rev. Stat. 18 § 12–821.01(A). A plaintiff may file the notice by delivering a copy of the claim to an 19 individual personally or to an agent authorized to receive service of process, or by 20 leaving copies at that individual’s “usual place of abode.” Ariz. R. Civ. P. 4.1(d). In 21 addition, the plaintiff must give notice to the employer; “[a] claimant who asserts that a 22 public employee’s conduct giving rise to a claim for damages was committed within the 23 course and scope of employment must give notice of the claim to both the employee 24 individually and to his employer.” 25 Maricopa, 922 P.2d 316, 317 (Ariz. Ct. App. 1996). Arizona courts have held that 26 plaintiffs who do not strictly comply with section 12-821.01(A) are barred from bringing 27 suit. 28 (“[c]ompliance with the notice provision of § 12-821.01(A) is a mandatory and essential Crum v. Superior Court In and For Cnty. of Harris v. Cochise Health Sys., 160 P.3d 223, 230 (Ariz. Ct. App. 2007) - 17 - 1 prerequisite to such an action”). “Actual notice and substantial compliance do not excuse 2 failure to comply with the statutory requirements of . . . § 12-821.01(A).” Falcon ex rel. 3 Sandoval v. Maricopa Cnty., 144 P.3d 1254, 1256 (Ariz. Ct. App. 2006). 4 An assertion that the plaintiff has not complied with the notice-of-claim statute is 5 an affirmative defense. Lee v. State, 242 P.3d 175, 178 (Ariz. Ct. App. 2010). Therefore, 6 the defendant bears the burden of proving that the plaintiff failed to comply. See Pfeil v. 7 Smith, 900 P.2d 12, 14 (Ariz. Ct. App. 1995) (“[i]n a civil action . . . the defendant has 8 the burden of proving an affirmative defense”). 9 The Yavapai County Defendants’ Motion to Dismiss states that “none of them 10 received a pre-litigation notice of claim.” (Doc. 83 at 14.) But there is no sworn 11 statement from any of the Yavapai County Defendants averring that no Notice of Claim 12 was served. 13 1897129, at *4 (D. Ariz. May 6, 2013) (dismissing state law claims after the defendants 14 provided affidavits averring that they were not served with a copy of the Notice of 15 Claim); Barth v. Cochise Cnty., 138 P.3d 1186, 1190 (Ariz. Ct. App. 2006) (finding that 16 the plaintiff did not serve valid Notice of Claim on the board of supervisors, “as the 17 county showed by the affidavit of the clerk of the board of supervisors stating that [the 18 plaintiff] has not served her with a notice of claim”). There is no evidence submitted 19 with the Yavapai County Defendants’ Motion. (See Doc. 83.) The arguments and 20 statements made by defense counsel are not evidence. Barcamerican Intern. USA Trust 21 v. Tyfield Importers, Inc., 289 F.3d 589, 593 n.4 (9th Cir. 2002). Consequently, the 22 Yavapai County Defendants fail to meet their burden to show that Hauser failed to 23 comply with the notice-of-claim statute. Their Motion to Dismiss will be denied as to 24 Causes of Action Twenty-three through Twenty-five. 25 V. Cf. Bryant v. City of Goodyear, CV-12-00319-PHX-JAT, 2013 WL Brnovich’s Motion to Dismiss 26 The Rule 12(b)(6) standard applicable to Brnovich’s Motion is set forth above. 27 Brnovich is named as a Defendant in the Third (Monell claim), Fourth (Monell 28 claim), Twenty-fourth (state law negligence), and Twenty-fifth (state law failure to - 18 - 1 train/supervise) Causes of Action. (Doc. 33.) 2 Brnovich argues that Hauser fails to allege any facts or a causal connection 3 between her arrest and detention and any acts of Brnovich, and she fails to allege any 4 specific injury as a result of Brnovich’s conduct. (Doc. 67 at 4–5.) Brnovich also argues 5 that he is entitled to qualified immunity, that the Eleventh Amendment bars any damages 6 claim against him in his official capacity, and that any state-law claim is barred because 7 Hauser did not comply with the Arizona notice-of-claim statute. (Id. at 5–8.) 8 In her opposition to Brnovich’s Motion, Hauser does not respond to Brnovich’s 9 legal arguments for dismissal. (Doc. 80.) Instead, Hauser discusses various “major 10 premises,” including that the State of Arizona has been replaced by federal corporations 11 that act as agencies or instrumentalities of the United States government, and she alleges 12 that Brnovich is therefore an attorney for the “Corporate State” and does not act in the 13 name of Arizona according to the Arizona Constitution. (See id. at 1–3, 11–12.) Hauser 14 accuses Brnovich of being an agent of foreign principals and acting for foreign countries 15 and, for this reason, she argues that he is not protected by sovereign immunity. (Id. at 16 12–15, 17.) 17 To state a plausible claim against a government official in his individual capacity, 18 a plaintiff must plead that the defendant, “through [his] own individual actions, has 19 violated the Constitution.” Iqbal, 556 U.S. at 676. A supervisor may be held liable under 20 § 1983 only if there is “a sufficient causal connection between the supervisor’s wrongful 21 conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th 22 Cir. 2013) (citations and internal quotation marks omitted); Fayle v. Stapley, 607 F.2d 23 858, 862 (9th Cir. 1979) (when a named defendant holds a supervisorial position, the 24 causal link between the defendant and the claimed constitutional violation must be 25 specifically alleged). 26 Here, Hauser’s own facts show that Brnovich was not present during her arrest and 27 detention, and Hauser fails to allege any specific conduct by Brnovich or how his conduct 28 is linked to the alleged constitutional violations. - 19 - Hauser sets forth only broad and 1 conclusory allegations that Brnovich failed to provide meaningful training, he 2 participated in the ratification the Yavapai County deputies’ actions, and he is liable 3 under Monell for failure to train/supervise employees on how to arrest an unarmed citizen 4 and this failure was pursuant to a policy or practice. (Doc. 33 ¶¶ 20, 39–40, 48, 50, 56, 5 66, 75, 98-99). 6 As discussed above, liability under Monell arises where an alleged constitutional 7 deprivation is caused by a policy or custom of the municipality. Monell, 436 U.S. at 8 691–94; Fogel v. Collins, 531 F.3d 824, 834 (9th Cir. 2008). Whether an official is a 9 final policymaker for purposes of municipal liability is a question of state law. Ortega 10 Melendres v. Arpaio, 598 F. Supp. 2d 1025 (D. Ariz. 2009) (citing Streit v. Cnty. of L.A., 11 236 F.3d 552, 560 (9th Cir. 2001)). Arizona state law charges county sheriffs with the 12 responsibility of conducting law enforcement and jail activity on the part of the county. 13 Under state statute, the county sheriff must “preserve the peace,” arrest those who 14 commit or attempt to commit crimes, prevent and suppress breaches of the peace, and 15 take charge of and keep the county jail. Ariz. Rev. Stat. § 11-441(A)(1)-(3), (5). The 16 purpose of the sheriff’s duty to arrest individuals “is the prompt and orderly 17 administration of criminal justice, including the Sheriff's discretionary investigatory 18 determination of when enough evidence has been obtained to make an arrest.” Guillory 19 v. Greenlee Cnty., No. CV 05-352 TUC DCB, 2006 WL 2816600, at *4 (D. Ariz. Sept. 20 28, 2006). 21 investigations” and “officer training.” Id. (“the alleged inadequate training was a policy 22 of the County because the Sheriff was the policymaker for the County regarding the 23 officer training”). 24 pursuant to his designated powers and duties as provided for by statute[.]” Id. “This makes the Sheriff the final policymaker regarding criminal Further, “the County is liable for policies made by the Sheriff, 25 Accordingly, under state law, Brnovich, as the State Attorney General, is not the 26 policymaker who would be liable under Monell for the Yavapai County Sheriff’s Office 27 policies related to arrests and use-of-force policies. Because Brnovich is not the proper 28 - 20 - 1 Defendant for Hauser’s Monell claims, Brnovich’s Motion to Dismiss will be granted as 2 to the Third and Fourth Causes of Action. 3 The Twenty-fourth Cause of Action alleges negligence. (Doc. 33.) To establish a 4 claim for negligence under Arizona law, a plaintiff must prove: 1) a duty requiring the 5 defendant to conform to a certain standard of care; 2) a breach by the defendant of that 6 standard; 3) a causal connection between the defendant’s breach and the resulting injury; 7 and 4) actual damages. Gipson v. Kasey, 150 P.3d 228, 230 (2007) (citation omitted). As 8 discussed, Hauser’s own facts show that Brnovich was not on the scene of Hauser’s 9 arrest, nor was he involved in Hauser’s interrogation or detention at the jail. Absent any 10 personal involvement, Brnovich cannot be liable for negligence. Brnovich’s Motion to 11 Dismiss will therefore be granted as to the Twenty-fourth Cause of Action. 12 The Twenty-fifth Cause of Action asserts a state law claim of failure to 13 train/supervise. (Doc. 33.) To be liable for negligent hiring, retention, or supervision of 14 an employee, the court must find that the employee/agent committed a tort. Mulhern v. 15 City of Scottsdale, 799 P.2d 15, 18 (Ariz. Ct. App. 1990). Thus, the liability of the 16 employer “depend[s] on the necessary finding of liability on the part of [his] agent.” 17 Mulligan v. Grace, 666 P.2d 1092, 1094 (Ariz. Ct. App. 1983). The Yavapai County 18 deputies are county employees, and, as discussed above, the County Sheriff is responsible 19 for Yavapai County deputy training and supervision. See Guillory, 2006 WL 2816600, at 20 *4. In other words, the Yavapai County deputies were not acting as employees or agents 21 of the state Attorney General. 22 Defendants are liable for committing a tort, Brnovich is not their employer for purposes 23 of liability for a negligent training or supervision claim. See Ariz. Rev. Stat. § 41-192 24 (listing the powers and duties of attorney general). Accordingly, Brnovich’s Motion will 25 be granted as to the state law claim against Brnovich for negligent training/supervision. Even assuming that some of the Yavapai County 26 For the above reasons, Brnovich’s Motion to Dismiss will be granted, and the 27 Court need not address Brnovich’s remaining arguments. The claims against Brnovich 28 - 21 - 1 are not curable by amendment; therefore, the claims against him will be dismissed with 2 prejudice. 3 VI. State Bar of Arizona Defendants’ Motion to Dismiss 4 A. 5 Rule 12(b)(1) allows a defendant to raise the defense that the court lacks 6 jurisdiction over the subject matter of an entire action or of specific claims alleged in the 7 action. When considering a motion to dismiss for lack of subject matter jurisdiction, the 8 Court takes as true the material facts alleged in the complaint. See Whisnant v. United 9 States, 400 F.3d 1177, 1179 (9th Cir. 2005). But the Court is not restricted to the face of 10 the pleadings; it may consider affidavits to resolve any factual disputes concerning the 11 existence of jurisdiction. McCarthy v .United States, 850 F.2d 558, 560 (9th Cir. 1988) 12 (citation omitted); see Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 13 1983) (consideration of material outside the pleadings did not convert a Rule 12(b)(1) 14 motion into one for summary judgment). Federal Rule of Civil Procedure 12(b)(1) 15 The party invoking federal subject-matter jurisdiction bears the burden of 16 establishing standing under Article III of the United States Constitution. Lewis v. Cont’l 17 Bank Corp., 494 U.S. 472, 477 (1990). “[S]tanding is an essential and unchanging part 18 of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 19 504 U.S. 555, 560 (1992). “Standing requires the party asserting the existence of federal 20 court jurisdiction to establish three elements: (1) an injury in fact that is (a) concrete and 21 particularized and (b) actual or imminent; (2) causation; and (3) a likelihood that a 22 favorable decision will redress the injury.” Wolfson v. Brammer, 616 F.3d 1045, 1056 23 (9th Cir. 2010). 24 B. 25 State Bar of Arizona Defendants Lee, Brokaw, and Calcagno assert that no facts 26 exist to support Hauser’s claims against them. (Doc. 82 at 5–6.) In support of their 27 Motion, State Bar of Arizona Defendants rely on the docket in this case and they submit 28 the affidavit of Lisa M. Panahi, General Counsel to the State Bar of Arizona. (Id., Ex. 1, Discussion - 22 - 1 Panahi Aff. ¶ 1.) 2 complaint against Smith, Mickle, and Eller and Doe Defendants 1–100. (Doc. 1.) On the 3 face of her Complaint, Hauser identified Steven Lee McMillan of Sedona, Arizona as 4 “Counsel of Choice for Plaintiff.” (Id. at 1.) McMillan signed the Complaint as a 5 “Witness,” and he signed as a “Witness” a subsequently filed Motion for Issuance of 6 Subpoena. (Id. at 34; Doc. 10.) In an order dated September 2, 2020, the Court noted 7 that no state bar attorney number was listed for McMillan, and the Court noted that 8 McMillian did not appear to be admitted to the bar for the District of Arizona. (Doc. 12.) 9 The Court ordered Hauser and McMillan to each show cause why McMillan should not 10 be sanctioned for appearing without being admitted to the bar of this Court and reported 11 to the Arizona Supreme Court for investigation on practicing law in the State without 12 authorization. (Id. at 2.) In response, McMillan admitted that he has not been admitted 13 to the bar and is not licensed to practice law in Arizona. (Doc. 14.) The docket shows that in June 2020, Hauser filed her original 14 Thereafter, Defendant Lee, Senior Bar Counsel for the State Bar of Arizona, wrote 15 a letter to McMillan stating that he appeared to have engaged in the unauthorized practice 16 of law and requested that McMillan respond by letter or email to Lee or Defendant 17 Brokaw, who is Lee’s secretary. (Doc. 82, Ex. A, Panahi Aff. ¶¶ 6–7, 9–10.) Another 18 Arizona State Bar employee, Defendant Calcagno, emailed McMillan to send him copies 19 of documents from this action that were referenced in Lee’s letter. (Id. ¶¶ 8, 11.) There 20 was no response from McMillan. (Id. ¶ 14.) There is no record of any communication 21 between the State Bar of Arizona and Hauser. (Id. ¶ 16.) 22 On November 3, 2020, Hauser filed her First Amended Complaint, which is the 23 operative complaint. (Doc. 33.) She named Lee, Brokaw, and Calcagno as Defendants; 24 however, there are no allegations specific to these three State Bar of Arizona Defendants. 25 (Id.) 26 Defendants, are “independent contractors with policy making authority” and that they 27 have supervisory positions and participated in the supervision and ratification of Yavapai 28 County Defendants Smith, Mickle, and Eller’s actions. (Id. ¶ 75.) Instead, Hauser alleges that these Defendants, along with the other named - 23 - 1 As the State Bar of Arizona Defendants note, the State Bar of Arizona operates 2 under the direction and control of the Supreme Court of Arizona, which has not 3 authorized it to exercise any policy-making or supervisory authority over any county 4 sheriff’s deputies. 5 Defendants assert that Hauser was not the subject of the unauthorized practice of law 6 charge. (Doc. 82 at 6.) Rather, the State Bar of Arizona Defendants only examined the 7 charge made against McMillan. (Id.) Defendants cite case law supporting that, in these 8 circumstances, Hauser suffered no injury in fact; thus, she lacks standing and there is no 9 subject matter jurisdiction. (Id., citing cases.) See Parkhurst v. Tabor, 569 F.3d 861, 866 10 (8th Cir. 2009) (“‘a citizen lacks standing to contest the policies of the prosecuting 11 authority when he himself is neither prosecuted nor threatened with prosecution’ because 12 ‘a private citizen lacks a judicially cognizable interest in the prosecution or 13 nonprosecution of another’”) (quoting Linda R.S. v. Richard D., 410 U.S. 614, 617 14 (1973)); see also Younger v. Harris, 401 U.S. 37, 42 (1971) (where appellees alleged that 15 they felt “inhibited” by a state syndicalism law, but they were never indicted, arrested, or 16 even threatened with prosecution, finding that there was no live controversy and no 17 federal court jurisdiction); Bailey v. Patterson, 369 U.S. 31, 33 (1962) (appellants lacked 18 standing to enjoin criminal prosecutions since they themselves had not been prosecuted 19 or threatened with prosecution). The State Bar of Arizona Defendants have demonstrated 20 that they had no connection to Hauser and that Hauser suffered no actual injury from the 21 State Bar of Arizona Defendants’ communications with Millan. See Wolfson, 616 F.3d at 22 1056. (Doc. 82, Ex. 1, Panahi Aff. ¶ 3.) The State Bar of Arizona 23 In her Response to the Motion to Dismiss, Hauser fails to present any further facts 24 or evidence to show that there is subject matter jurisdiction. (See Doc. 86.) Instead, she 25 alleges generally, absent any supporting evidence, that the three State Bar of Arizona 26 Defendants provided aid and counsel to other Defendants in this case; they intended to 27 aid other Defendants for the purpose of protecting criminals; they participated in some 28 elements of the crimes against Hauser; and they intended to aid in the cover-up of crimes. - 24 - 1 (Id. at 5–7.) Hauser also argues that this Court violated her rights when it ordered that 2 she could not have her counsel of choice. (Id. at 10–14.) Nothing in Hauser’s Response 3 or her voluminous attachments is sufficient to establish standing and subject matter 4 jurisdiction as to the claims against the State Bar of Arizona Defendants. (See Doc. 86- 5 1.)3 Their Motion to Dismiss for lack of jurisdiction will therefore be granted. Because 6 this defect is not curable by amendment, the claims against the State Bar of Arizona 7 Defendants will be dismissed with prejudice. 8 IT IS ORDERED: 9 (1) The reference to the Magistrate Judge is withdrawn as to Defendant 10 Brnovich’s Motion to Dismiss (Doc. 67), State Bar of Arizona Defendants’ Motion to 11 Dismiss (Doc. 82) and Motion to Strike (Doc. 98), and Yavapai County Defendants’ 12 Motion to Dismiss (Doc. 83) and Motion to Strike (Doc. 97). 13 (2) State Bar of Arizona Defendants’ Motion to Strike (Doc. 98) and Yavapai 14 County Defendants’ Motion to Strike (Doc. 97) are granted; the Clerk of Court must 15 strike Plaintiff’s filings at Doc. 92 and Doc. 95 from the docket. 16 17 18 19 20 21 (3) against Brnovich are dismissed with prejudice. (4) State Bar of Arizona Defendants’ Motion to Dismiss (Doc. 82) is granted; the claims against the State Bar Arizona Defendants are dismissed with prejudice. (5) Yavapai County Defendants’ Motion to Dismiss (Doc. 83) is granted in part and denied in part as follows: 22 23 Defendant Brnovich’s Motion to Dismiss (Doc. 67) is granted; the claims (a) the Motion is granted as to the claims in Causes of Action Five through Twenty-two and Twenty-six, and these claims are dismissed with prejudice; 24 (b) the Motion is granted as to the Monell claims in Causes of Action 25 26 27 28 3 Hauser attached approximately 480 pages of attachments to her Response. (Doc. 86-1.) The attachments include, among other things, excerpts from the Declaration of Independence, the Articles of Confederation, and Montesquieu’s “The Spirit of Laws”; copies of prior documents filed in this action; and proposed deposition questions for the State Bar of Arizona Defendants. (See, e.g., Doc. 86-1 at 1–2.) - 25 - 1 Three and Four; and 2 (c) the Motion is otherwise denied. 3 (6) Brnovich, Lee, Brokaw, and Calcagno are dismissed as Defendants. 4 (7) The remaining claims are: 5 6 (a) Defendants Smith, Mickle, and Eller; 7 8 (b) Second Cause of Action—Fourth Amendment excessive force claim against Defendants Smith, Mickle, and Eller; 9 10 First Cause of Action—Fourth Amendment false arrest claim against (c) Twenty-third Cause of Action—state law battery claim against Defendants Smith, Mickle, and Eller; 11 (d) Twenty-fourth Cause of Action—state law negligence claim against 12 Defendants Simmons, Thurman, Garrison, Brown, Mallory, Lundy, Mascher, 13 McQueary, Newnum, Hunt, Martin, Polk, Cordrey, Michalsky, Bigbee, and Toth; 14 and 15 (e) Twenty-fifth Cause of Action—state law claim for failure to 16 train/supervise against Defendants Simmons, Thurman, Garrison, Brown, Mallory, 17 Lundy, Mascher, McQueary, Newnum, Hunt, Martin, Polk, Cordrey, Michalsky, 18 Bigbee, and Toth. 19 20 Dated this 3rd day of June, 2021. 21 22 23 24 25 26 27 28 - 26 -

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