Taylor v. Pima, County of et al

Filing 227

ORDER: IT IS ORDERED that Defendant Pima County's 177 Motion to Dismiss is denied. Defendant City of Tucson's 173 Motion for Reconsideration is partially granted and partially denied, as set forth in this Order. Defendant City of Tucson 's 180 Motion to Dismiss is granted as to Counts 6 and 7 of Plaintiff's Third Amended Complaint but otherwise denied. Counts 6 and 7 of Plaintiff's 169 Third Amended Complaint are dismissed with prejudice. Signed by Judge Rosemary Marquez on 6/4/21. (BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Louis Taylor,

No. CV-15-00152-TUC-RM
Plaintiff,

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v.

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ORDER

County of Pima, et al.,

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Defendants.

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Pending before the Court is Defendant City of Tucson’s Motion for

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Reconsideration (Doc. 173) of the Court’s February 16, 2021 Order (Doc. 167), as well

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as Defendants’ Motions to Dismiss (Docs. 177, 180) Plaintiff’s Third Amended

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Complaint (“TAC”) (Doc. 169).

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I.

Background1

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As alleged in the TAC, Plaintiff was convicted in 1972 of 28 counts of murder in

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connection with a fire that he was accused of starting at the Pioneer Hotel in Tucson,

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Arizona. (Doc. 169 at 3-5.)2 In 2012, he filed a state-court petition for post-conviction

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relief premised upon a report by fire experts who had concluded that the Pioneer Hotel

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fire could not be classified as arson. (Id. at 9.) The Pima County Attorney’s Office

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stipulated to Plaintiff’s request for post-conviction relief on the condition that Plaintiff

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enter a no-contest plea to charges related to the fire. (Id. at 9-10.) On April 2, 2013,

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More detailed recitations of the factual and procedural history of this case are set
forth in previous Orders of this Court, including the February 16, 2021 Order (Doc. 167).
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All record citations herein refer to the page numbers generated by the Court’s
electronic filing system.

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Plaintiff’s 1972 convictions were vacated, he was convicted based on his no-contest plea

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and sentenced to time-served, and he was released from prison after spending

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approximately 42 years incarcerated. (See id. at 10.)

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On February 16, 2021, this Court granted Plaintiff’s Motion for Leave to File TAC

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and partially denied Defendants’ Motion for Protective Order. (Doc. 167.) Plaintiff’s

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TAC includes a request for a declaratory judgment expunging Plaintiff’s 2013

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convictions “as unconstitutional, and thus invalid.”

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Plaintiff leave to file the TAC, this Court determined that “Plaintiff’s factual allegations

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concerning his 2013 post-conviction proceedings are sufficient to raise an inference that

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this case may be one of the ‘unusual or extreme cases’ in which expungement” is

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appropriate under Shipp v. Todd, 568 F.2d 133 (9th Cir. 1978) (per curiam) and its

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progeny. (Doc. 167 at 8; see also id. at 10 n.8.)

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II.

(Doc. 169 at 26.)

In granting

Defendants’ Motion to Dismiss Request for a Declaratory Judgment

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Defendant Pima County moves pursuant to Federal Rule of Civil Procedure

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12(b)(6) to dismiss Plaintiff’s request for a declaratory judgment expunging his 2013

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convictions (Doc. 177), and Defendant City of Tucson joins in the Motion (Doc. 180).

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Defendants concede that Shipp and its progeny recognize federal courts’ inherent power

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to expunge criminal records “in certain circumstances,” but argue that such circumstances

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do not exist here. (Doc. 177 at 6-8.) Defendants further argue that the factual allegations

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of the TAC are insufficient to state a plausible claim that Plaintiff’s 2013 convictions are

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unconstitutional. (Id. at 9-11.) Defendants ask that the Court either dismiss Plaintiff’s

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request for declaratory relief or certify the issue for interlocutory appeal. (Id. at 12-13;

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see also Doc. 180 at 7-8.) In response, Plaintiff argues that this Court has already

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considered and rejected the arguments raised by Defendants. (Doc. 178 at 1, 6-10.)

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Plaintiff further argues that coercing a defendant to plead guilty or no-contest to

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unprovable charges in order to gain his freedom violates due process. (Id. at 2-6, 10-13.)

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As an initial matter, the Court finds that Pima County’s Motion to Dismiss is

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properly construed as a motion for reconsideration of the portion of the Court’s February

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16, 2021 Order finding that the factual allegations of Plaintiff’s TAC are sufficient to

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state a claim for expungement under Shipp and its progeny. Defendants contend that the

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Motion to Dismiss is not seeking reconsideration of the February 16, 2021 Order,

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because in that Order the Court considered the TAC under the standard for evaluating

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futility under Federal Rule of Civil Procedure 15, which Defendants argue is distinct

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from the current Rule 8 pleading standard applicable to a Rule 12(b)(6) motion to

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dismiss. (Doc. 177 at 4.) Specifically, Defendants contend that an amendment is futile

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under Rule 15 only if a plaintiff can prove no set of facts in support of the amendment

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which would entitle him to relief, but that the no-set-of-facts standard is no longer

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synonymous with Rule 8’s pleading standard. (Id. (quoting DCD Programs, Ltd. v.

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Leighton, 833 F.2d 183, 188 (9th Cir. 1987)).) Defendants further contend that this Court

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did not previously apply Rule 8’s pleading standard to the TAC but merely determined

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“that a request to expunge a state court conviction could be maintained under some

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hypothetical set of facts.” (Doc. 186 at 1-2 (emphasis in original).)

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It is true that the Ninth Circuit has indicated that an amendment is futile under

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Rule 15 only if no set of facts can be proved under the amendment that would constitute a

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valid and sufficient claim, but it has also indicated that the proper test to be applied when

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determining the legal sufficiency of a proposed amendment is identical to the one used

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when considering the sufficiency of a pleading challenged under Rule 12(b)(6). See

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Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Courts previously

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applied the no-set-of-facts standard when evaluating the sufficiency of a pleading under

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Rule 12(b)(6), but that standard has since been abrogated. See generally Bell Atl. Corp.

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v. Twombly, 550 U.S. 544 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 670 (2009).

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Under the current standard, “a complaint must contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S. at 678

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(quoting Twombly, 550 U.S. at 570).

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Contrary to Defendants’ assertion, this Court did not apply the no-set-of-facts

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standard in evaluating futility under Rule 15 in its February 16, 2021 Order, nor was its

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ruling limited to the finding that “a request to expunge a state court conviction could be

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maintained under some hypothetical set of facts.” (Doc. 186 at 1 (emphasis in original).)3

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This Court affirmatively found that the factual allegations of Plaintiff’s TAC are

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sufficient to state a plausible claim for expungement under Shipp. (See Doc. 167 at 8

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(“Plaintiff’s factual allegations concerning his 2013 post-conviction proceedings are

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sufficient to raise an inference that this case may be one of the ‘unusual or extreme cases’

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in which expungement under Shipp is appropriate”); see also id. at 10 n.8 (“when

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considered in conjunction with the other factual allegations of Plaintiff’s complaint the

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proposed amendment is sufficient to state a claim for expungement under Shipp”)

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(internal citation omitted).) Defendants are asking this Court to reconsider that finding.

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“Absent good cause shown, any motion for reconsideration shall be filed no later

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than fourteen (14) days after the date of the filing of the Order that is the subject of the

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motion.” LRCiv 7.2(g)(2). Defendants did not request reconsideration of this Court’s

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Shipp analysis within fourteen days of the filing of this Court’s February 16, 2021 Order,

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nor have they shown good cause for their delay. Pima County argues in its Reply that it

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has shown good cause because judicial economy and the preservation of party resources

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favored raising its arguments in a motion to dismiss rather than a motion for

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reconsideration. (Doc. 186 at 2 n.1.) But if Defendants believed it was more efficient to

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urge reconsideration of the Court’s February 16, 2021 Order in a motion to dismiss rather

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than a motion for reconsideration, they could have sought advance leave of Court to do

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so. Instead, Defendants allowed the deadline for seeking reconsideration of the February

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16, 2021 Order to expire without notifying the Court of their intent to seek

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reconsideration of that Order’s Shipp analysis.4
Even if the Court were to excuse the untimeliness of Defendants’ arguments,

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Defendants are correct that this Court cited DCD Programs in its February 16,
2021 Order (Doc. 177 at 4; Doc. 186 at 1), but the Court cited that case for the
proposition that futile amendments should not be allowed (Doc. 167 at 4); the Court
never referred to the no-set-of-facts standard.
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Defendant City of Tucson filed a timely Motion for Reconsideration of a different
portion of the February 16, 2021 Order (see Doc. 173 and discussion infra), but nowhere
in that Motion did the City of Tucson indicate it was seeking or planning to seek
reconsideration of the Court’s Shipp analysis.
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Defendants have not shown that reconsideration of the Court’s Shipp analysis is

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appropriate. Motions for reconsideration should be granted only in rare circumstances,

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Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995), and mere

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disagreement with a previous order is an insufficient basis for reconsideration, see Leong

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v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 1988).

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reconsideration will ordinarily be denied “absent a showing of manifest error or a

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showing of new facts or legal authority that could not have been brought to [the Court’s]

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attention earlier with reasonable diligence.”

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reconsideration may not “repeat any oral or written argument made by the movant in

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LRCiv 7.2(g)(1).

Motions for

Motions for

support of or in opposition to the motion that resulted in the Order.” Id.

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Defendants’ Rule 12(b)(6) briefs impermissibly repeat arguments that Defendants

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already raised in the briefing on Plaintiff’s Motion to Amend. Defendants have not

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presented new facts or legal authority that they could not have presented earlier with

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reasonable diligence, nor have they shown that the Court committed manifest error in

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finding that Plaintiff’s TAC states a plausible claim for expungement under Shipp and its

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progeny. Defendants argue that Shipp “has clearly become a relic under current law”

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(Doc. 194 at 4), but Shipp has been repeatedly re-affirmed by the Ninth Circuit, and this

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Court has no authority to overrule it. Defendants further argue that Shipp authorizes only

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expungement of an arrest record and does not authorize expungement of an outstanding

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conviction, particularly where a plaintiff makes a concomitant damages request. (Doc.

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177 at 6-7.) But the plaintiff in Shipp sought to have his state conviction declared

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“invalid on federal constitutional grounds” and expunged, and the Ninth Circuit

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remanded “for a determination of the question of expungement.” 568 F.2d at 133-34.

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Subsequent cases applying Shipp have affirmed federal courts’ inherent power to

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expunge convictions. See, e.g., United States v. Smith, 940 F.2d 395, 396 (9th Cir. 1991)

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(per curiam). And Defendants fail to cite any case addressing a request for expungement

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under Shipp that holds such a request is improper when a plaintiff makes a concomitant

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damages request.

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In arguing that the TAC fails to state a plausible claim that Plaintiff’s 2013

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convictions are unconstitutional, Defendants concede that this Court previously found the

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factual allegations sufficient to state a claim for expungement under Shipp; nevertheless,

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they argue that “the Court can and should consider those allegations in context.” (Doc.

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177 at 9-10.) Defendants do not dispute that a coerced plea violates due process, see Iaea

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v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986) (citing Brady v. United States, 397 U.S. 742,

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750 (1970)), but they argue that a plea is not coerced merely because a defendant’s

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motivation for accepting the plea is to avoid incarceration.

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Defendants are correct that a plea is not coerced within the meaning of due process solely

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because a defendant accepted the plea in order to avoid the possibility of a lengthier

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sentence following a guilty verdict after a trial. See Brady, 397 U.S. at 749-53. But that

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situation is distinguishable from the case at hand. Here, the factual allegations of the

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TAC, accepted as true for purposes of Rule 12(b)(6), raise a reasonable inference that the

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Pima County Attorney leveraged Plaintiff’s incarceration on an existing sentence in order

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to coerce him into pleading no-contest to charges unprovable at a re-trial, potentially for

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the purpose of avoiding a civil damages judgment for wrongful conviction.

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voluntariness of a plea “can be determined only by considering all of the relevant

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circumstances surrounding it,” Brady, 397 U.S. at 749, and the authority cited by

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Defendants is simply not analogous to the unusual factual circumstances presented here.

(Doc. 186 at 9-10.)

The

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To the extent the parties dispute whether Plaintiff can prove that his 2013 plea was

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coerced or that the prosecution lacked evidence to prove arson, the Court finds those

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arguments premature. The Court also notes that both Defendants and Plaintiff rely on

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exhibits attached to their briefs, including a newspaper article and an investigatory report.

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(See, e.g., Doc. 178 at 18-60; Doc. 186-1.) “As a general rule,” the Court “may not

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consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion,” except

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materials attached to the Complaint, “evidence on which the Complaint necessarily

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relies,” and matters of judicial notice. United States v. Corinthian Colleges, 655 F.3d

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984, 998-99 (9th Cir. 2011) (internal quotations omitted). The Court may not take

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judicial notice of facts subject to reasonable dispute. Id. at 999. At least some of the

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material referenced in and attached to the parties’ briefs is inappropriate for consideration

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on a Rule 12(b)(6) motion. To consider the material, the Court would need to convert

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Pima County’s Motion to Dismiss into a motion for summary judgment, but it declines to

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do so given the prematurity of the parties’ arguments concerning whether evidence

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supports Plaintiff’s request for declaratory relief. Discovery in this case is ongoing and

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the parties will have an opportunity to file summary judgment motions addressing the

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merits of Plaintiff’s claims after the close of discovery.

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Finding no basis for reconsideration of the Shipp ruling in its February 6, 2021

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Order, the Court will deny Defendants’ Motion to Dismiss Plaintiff’s request for a

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declaratory judgment. The Court will further deny Defendants’ request to certify the

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Shipp issue for interlocutory appeal. Interlocutory orders are typically not immediately

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appealable, and certification under 28 U.S.C. § 1292(b) is appropriate only in “rare

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circumstances.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir.

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2002).

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resulting in years of delay, and it does not find that a further interlocutory appeal at this

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juncture is appropriate under the standard set forth in § 1292(b).

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III.

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Law Claims

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The Court has already certified issues for interlocutory appeal in this case,

City of Tucson’s Motion for Reconsideration and Motion to Dismiss State-

The City of Tucson filed a timely Motion for Reconsideration asking this Court to
reconsider the following portions of its February 16, 2021 Order:
The Court also notes that discovery relating to the cause of the Pioneer
Hotel fire is relevant to Plaintiff’s state-law claims in Counts Seven and
Eight of the Second Amended Complaint, which assert that the City of
Tucson negligently investigated the fire and arrested Plaintiff without
probable cause or reasonable suspicion. (Doc. 40 at 30-31.) The Court
previously declined to dismiss Counts Seven and Eight of the Second
Amended Complaint (Doc. 63 at 20), and Defendants did not seek
reconsideration of that ruling; accordingly, Plaintiff is entitled to seek
discovery relevant to those claims.

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Whether the Tucson Police Department had racially discriminatory
practices against African Americans in 1972 is relevant to the claims
remaining in this litigation, including the state-law claim asserted in Count
Eight of the SAC.
(Doc. 173 at 1-2 (quoting Doc. 167 at 13-14, 15).)

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The City argues that the above portions of the Court’s Order are factually

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erroneous because the Court has never specifically ruled for or against the City on the

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state-law claims asserted in Counts Seven and Eight of Plaintiff’s Second Amended

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Complaint (“SAC”), including on whether the counts are barred by A.R.S. § 12-821 and

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12-821.01. (Id. at 4.) The City further argues that the Court’s ruling is inconsistent with

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its prior holding that Plaintiff’s allegations of constitutional harm are barred by the statute

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of limitations to the extent they are premised on Plaintiff being arrested without probable

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cause or unlawfully interrogated. (Id.) Finally, the City asserts that the Court committed

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legal error by relying upon the allegations of Plaintiff’s SAC to determine the permissible

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scope of discovery when it had granted Plaintiff leave to file a TAC. (Id. at 5.) The City

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argues that, because the TAC supersedes the SAC, the Court should have postponed

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ruling on Defendants’ Motion for Protective Order until the “final contours” of the TAC

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had been determined. (Id.)

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Contrary to the City’s arguments, this Court did not commit a factual error in its

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February 16, 2021 Order; the Court accurately stated that Plaintiff’s state-law claims

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against the City of Tucson had not been dismissed and remained pending. The City of

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Tucson had previously filed a Motion to Dismiss Plaintiff’s SAC, but it failed in that

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Motion to request dismissal of Plaintiff’s state-law claims, and the Court therefore

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declined to grant the Motion as to those claims. (Doc. 63 at 20-21.) The Court did not

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previously have an occasion to analyze the merits of the state-law claims against the City

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of Tucson, or of any defenses thereto, because the City of Tucson did not request the

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dismissal of those claims until it filed its pending Motion to Dismiss Plaintiff’s TAC.

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The Court also rejects the City of Tucson’s argument that it committed legal error

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in relying upon the allegations of Plaintiff’s SAC to determine the permissible scope of

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discovery.

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Plaintiff’s proposed TAC and was aware that the TAC would re-assert the same state-law

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claims against the City that Plaintiff had asserted in his SAC. (Compare Doc. 40 at 30-31

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(Counts Seven and Eight of SAC), with Doc. 169 at 25-26 (Counts Six and Seven of

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TAC).) The City of Tucson has not shown any manifest error in the Court’s decision not

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to sua sponte postpone ruling on Defendants’ Motion for Protective Order.

When it issued its February 16, 2021 Order, the Court had reviewed

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Nevertheless, the Court agrees that subsequent events have affected the reasoning

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of the portions of the Court’s February 16, 2021 Order at issue in the City of Tucson’s

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Motion for Reconsideration. After the Court issued that Order, Plaintiff filed his TAC,

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the City of Tucson moved to dismiss the state-law claims asserted against it in the TAC,

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and Plaintiff conceded that the claims are subject to dismissal for failure to comply with

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Arizona’s notice-of-claim statute.

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opposition to the City of Tucson’s Motion to Dismiss the state-law claims, the Court will

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dismiss Counts Six and Seven of Plaintiff’s TAC. Plaintiff is not entitled to discovery

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that is relevant solely to those claims; however, discovery relating to the cause of the

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Pioneer Hotel fire and whether the Tucson Police Department had racially discriminatory

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practices against African-Americans in 1972 remains relevant to Plaintiff’s pending

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federal claims.

Given Plaintiff’s non-

IT IS ORDERED that Defendant Pima County’s Motion to Dismiss (Doc. 177) is

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(Doc. 180; Doc. 189.)

denied.

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IT IS FURTHER ORDERED that Defendant City of Tucson’s Motion for

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Reconsideration (Doc. 173) is partially granted and partially denied, as set forth

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above.

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IT IS FURTHER ORDERED that Defendant City of Tucson’s Motion to

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Dismiss (Doc. 180) is granted as to Counts Six and Seven of Plaintiff’s Third Amended

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Complaint but otherwise denied. Counts Six and Seven of Plaintiff’s Third Amended

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Complaint (Doc. 169) are dismissed with prejudice.

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Dated this 4th day of June, 2021.

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