Nixon v. Francis et al
Filing
66
ORDER: The Report and Recommendation (doc. 64 ) is accepted and adopted; Defendants Tyler Francis and Ellinwood & Francis LLP's Motion to Dismiss (doc. 39 ) is GRANTED; Defendants' Motion to Dismiss for Failure to Respond (doc. 56 ) is DENIED as moot; The Complaint (doc. 1 ) is dismissed without prejudice. The Clerk of the Court is directed to close the case. Signed by Judge Jennifer G Zipps on 9/14/2016.(DLC)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Tony Nixon,
No. CV-15-00247-TUC-JGZ
Plaintiff,
10
11
v.
12
ORDER
Tyler D. Francis, et al.,
13
Defendants.
14
15
Pending before the Court is a Report and Recommendation issued by United
16
States Magistrate Judge Charles R. Pyle that recommends granting Defendants’ Motion
17
to Dismiss (doc. 39) and Defendants’ Motion to Dismiss for Failure to Respond to
18
Defendants’ Motion to Dismiss (doc. 56), or, in the alternative, granting Defendants’
19
Motion to Dismiss (doc. 39) and denying the Motion to Dismiss for Failure to Respond
20
(doc. 56) as moot. (Doc. 64.) Plaintiff timely filed an objection on July 27, 2016. (Doc.
21
65.) Defendants did not file a response to the objection.
22
The Court has reviewed the record and concludes that Magistrate Judge Pyle’s
23
recommendation to grant Defendants’ Motion to Dismiss (doc. 39) and deny as moot the
24
related Motion to Dismiss for Failure to Respond (doc. 56) is appropriate. The Magistrate
25
Judge correctly found that there is no federal basis for any of Plaintiff’s claims against
26
the “Francis” Defendants.1 Plaintiff seeks monetary damages, but because an appointed
27
1
28
Defendant United States of America, substituted for the named Defendant,
Assistant United States Attorney Brian Decker, was dismissed on March 2, 2016. (Doc.
55.) The “Francis” Defendants include D. Tyler Francis, Tyler D. Francis, and Ellinwood
1
attorney is not a “federal official” for the purposes of a Bivens claim, that claim fails. Cox
2
v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982). Further, Plaintiff’s claims pertaining
3
to the effective representation by Defendant Francis in his criminal proceedings and the
4
alleged conspiracy between Defendant Francis and the prosecutor in that case, would, if
5
true, render Plaintiff’s conviction invalid. Under Heck v. Humphries, 114 S. Ct. 2364
6
(1994), in order to sustain a claim for damages for conduct that would render a conviction
7
or sentence invalid, Plaintiff would have to show that the conviction or sentence has been
8
reversed, expunged, or otherwise declared invalid—a showing he cannot make. The
9
remaining claims are state law contract, malpractice, and tort claims over which this
10
Court will, in its discretion, decline to exercise supplemental jurisdiction in the absence
11
of a federal cause of action.2 28 U.S.C. § 1367(c)(4).
12
In his Objection,3 Plaintiff asserts: (1) the information given to the Court by
13
Defendant Francis is incorrect; (2) Plaintiff filed all the correct information that was
14
required by the Court; and (3) Plaintiff has the right to file the present lawsuit without
15
overturning any conviction because it is a law suit involving negligence and legal
16
malpractice. (Doc. 65.) Plaintiff also reasserts many of the factual and legal allegations
17
18
19
20
21
22
23
24
25
and Francis LLP.
2
Plaintiff’s Complaint asserts claims for breach of covenant of good faith and fair
dealing; breach of implied in fact contract; breach of written contract; negligence; pain
and suffering; “pain and unusual punishment”; false incarceration; danger to Plaintiff’s
health, life, and safety due to false incarceration; loss of personal property due to false
incarceration; “100% Percent Effective Assistance of Counsel and Breach of Implied In
Fact Contract (Verbal) to Represent Tony Nixon Fair and Right According to the Law”;
False Incarceration Due to the Breach of Attorney Agreement to Uphold the Law”; “Loss
of Plaintiff Tony Nixon Personal Property Due to False Incarceration and Bad
Representation and Bad Attorney”; and “Refusal to Present Evidence in Plaintiff Tony
Nixon Case and Call Witnesses.”
3
26
27
28
Plaintiff’s Objection is entitled “Objection Motion Against the Defendant’s
Motion to Dismiss with Exhibits…Plus Like to Argue this Objection Motion in Court to
Dismiss the Defendant’s Claim.” (See doc. 64.) To the extent Plaintiff intended his
Objection to be construed as a request to file a belated response to Defendants’ Motion to
Dismiss at Doc. 39, the request is denied. The Court also finds that the pending motions
and the Report and Recommendation are suitable for resolution without oral argument.
See LRCiv 7.2(f).
-2-
1
against Defendant Francis, and attaches several exhibits in support of his original claims.4
2
With regards to Plaintiff’s first contention, this Court and the Magistrate Judge conducted
3
independent review of both the record and the legal authority presented. Plaintiff’s
4
general assertion that Francis gave incorrect information to the Court does not provide a
5
basis for rejecting the Magistrate Judge’s conclusion. Plaintiff fails to identify any
6
incorrect information which would change the legal analysis or outcome. Second,
7
Plaintiff’s filings may include correct information, but on the facts presented the filings
8
are insufficient to establish federal claims. Finally, Plaintiff’s assertion that this is a
9
lawsuit involving negligence and legal malpractice does not alter the outcome because
10
the Defendants are private parties. See 28 U.S.C. § 1346(b). As noted above, Defendant
11
Francis’s status as a court-appointed attorney does not make him an employee of the
12
United States under the Federal Tort Claims Act. Accordingly, these claims are properly
13
characterized as state law claims and may be dismissed.
14
In sum, the Court finds that the Magistrate Judge’s conclusions are not clearly
15
erroneous. Accordingly, the Court will adopt the Report and Recommendation as
16
follows:
17
//
18
//
19
//
20
//
21
//
22
//
23
//
24
//
25
//
26
//
27
4
28
The exhibits attached by Plaintiff include Plaintiff’s recent state bar complaint
against Defendant Francis, a letter from Plaintiff to Defendant Francis, and objections
filed by Defendant Francis to a report and recommendation in Plaintiff’s criminal case.
-3-
1
IT IS HEREBY ORDERED:
2
1.
The Report and Recommendation (doc. 64) is accepted and adopted;
3
2.
Defendants Tyler Francis and Ellinwood & Francis LLP’s Motion to Dismiss
4
5
(doc. 39) is GRANTED;
3.
6
7
8
Defendants’ Motion to Dismiss for Failure to Respond (doc. 56) is DENIED as
moot;
4.
The Complaint (doc. 1) is dismissed without prejudice. The Clerk of the Court
is directed to close the case.
9
10
Dated this 14th day of September, 2016.
11
12
13
Honorable Jennifer G. Zipps
United States District Judge
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?