Opinion
No. CV11-80-PHX-JAT.
May 26, 2011
ORDER
Currently pending before the Court is Defendant Town of Payson's Motion to Dismiss (Doc. 12). The Court now rules on the Motion.
BACKGROUND
This case arises from the mistaken arrest, detainment, and prosecution of the Plaintiff, William Brett Cameron. Plaintiff was arrested on charges arising out of the actions of a different William Cameron (the "Perpetrator"). The Perpetrator was born thirty years before Plaintiff.
On March 27, 2002, the Gila County Attorney filed a criminal complaint in the Payson Justice Court naming the Perpetrator as the defendant and charging him with committing the felonies of theft and obtaining benefit by means of fraudulent schemes and artifices. The documents filed with the complaint identified the Perpetrator as the intended defendant and provided his correct date of birth, social security number, mailing address, gender, height, weight, race, and color of his eyes and hair. (Certified Copy of Payson Justice Court Records, Ex. A to Doc. 12.) The criminal complaint resulted from an investigation provided to the Gila County Attorney by Sgt. Tieman, a member of the Payson Police Department.
The Court may take judicial notice of matters of public record, such as court records, without converting a 12(b)(6) motion to a motion for summary judgment. See Barron v. Reich, 13 F.3d 1370, 1377 n. 2 (9th Cir. 1994).
The County Attorney dismissed without prejudice the criminal complaint against the Perpetrator on April 13, 2004. In October of 2004, the Gila County Attorney brought the case to a grand jury seeking an indictment against William Cameron for the same incidents that formed the basis for the 2002 complaint against the Perpertrator. Police Officer Steve Johnson testified before the Grandy Jury about the investigation conducted by Sgt. Tieman. The Grand Jury issued an indictment, but for some reason the indictment contained Plaintiff's social security number and date of birth, not the Perpetrator's. A true bill was found, and a bench warrant issued.
Plaintiff was arrested on January 10, 2010 in San Diego, California. Although Plaintiff told the authorities that they had the wrong person, Plaintiff remained incarcerated in San Diego until January 27, 2010. He was then extradited to Gila County, Arizona, where he was released from custody on February 1, 2010.
LEGAL STANDARD
Defendant Town of Payson has moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss all the claims against it. The Court may dismiss a complaint for failure to state a claim under 12(b)(6) for two reasons: 1) lack of a cognizable legal theory and 2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To survive a 12(b)(6) motion for failure to state a claim, a complaint must meet the requirements of Federal Rule of Civil Procedure 8(a)(2). Rule 8(a)(2) requires a "short and plain statement of the claim showing that the pleader is entitled to relief," so that the defendant has "fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Although a complaint attacked for failure to state a claim does not need detailed factual allegations, the pleader's obligation to provide the grounds for relief requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations omitted). The factual allegations of the complaint must be sufficient to raise a right to relief above a speculative level. Id. Rule 8(a)(2) "requires a 'showing,' rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only 'fair notice' of the nature of the claim, but also 'grounds' on which the claim rests." Id. (citing 5 C. Wright A. Miller, Federal Practice and Procedure § 1202, pp. 94, 95 (3d ed. 2004)).
Rule 8's pleading standard demands more than "an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555). A complaint that offers nothing more than naked assertions will not suffice. Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, which, if accepted as true, states a claim to relief that is "plausible on its face." Id. at 1949. Facial plausibility exists if the pleader pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Plausibility does not equal "probability," but plausibility requires more than a sheer possibility that a defendant has acted unlawfully. Id. "Where a complaint pleads facts that are 'merely consistent' with a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (citing Twombly, 550 U.S. at 557).
In deciding a motion to dismiss under Rule 12(b)(6), the Court must construe the facts alleged in the complaint in the light most favorable to the drafter of the complaint and the Court must accept all well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, the Court does not have to accept as true a legal conclusion couched as a factual allegation. Papasan v. Allain, 478 U.S. 265, 286 (1986).
COUNT I — 42 U.S.C. § 1983
The Town of Payson argues that Plaintiff has failed to state a § 1983 claim against it because Plaintiff has not alleged sufficiently that his constitutional rights were violated by a policy, practice, or custom of the Town of Payson. The only allegation in the Complaint regarding a town policy, practice, or custom reads: "The fact that incorrect identifying information made its way into the indictment and arrest warrant was due to defective, inadequate, and otherwise negligent policies and procedures of the Gila County Attorney and of the Payson Policy Department." (Compl., Doc. 1, ¶ 22.)
Municipalities and other local governments, such as Defendant Town of Payson, are "persons" subject to suit under 42 U.S.C. § 1983. Monell v. Dep't of Social Serv. of the City of New York, 436 U.S. 658, 690 (1978). But municipalities cannot be held liable under § 1983 solely on a respondeat superior theory. Id. at 691. To demonstrate municipal liability, a plaintiff must satisfy one of the following three conditions:
First, the plaintiff may prove that a city employee committed the alleged constitutional violation pursuant to a formal governmental policy or a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity. Second, the plaintiff may establish that the individual who committed the constitutional tort was an official with final policy-making authority and that the challenged action itself thus constituted an act of official governmental policy. Whether a particular official has final policy-making authority is a question of state law. Third, the plaintiff may prove that an official with final policy-making authority ratified a subordinate's unconstitutional decisions or action and the basis for it.Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Gillete v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992)). Once the plaintiff meets one of the above conditions, he also must show that the policy/practice/custom/policy-maker decision was both the cause in fact and the proximate cause of the constitutional deprivation. Id.
Absent an official municipal policy, a § 1983 plaintiff must show a longstanding practice or custom. Liability for a custom cannot be predicated on isolated or sporadic incidents; "it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Id.
A city also may be liable if it has a "policy of inaction and such inaction amounts to a failure to protect constitutional rights." Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001) (internal citations omitted). The custom or policy of inaction must be the result of a conscious or "deliberate choice to follow a course of action made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in questions." Id. (internal citations omitted). A city's failure to train its employees may create § 1983 liability as well, if the failure to train amounts to "deliberate indifference to the rights of persons with whom those employees are likely to come into contact." Id. The identified deficiency in training must be closely related to the ultimate injury. Id.
Deliberate indifference occurs when the need for more or different action "is so obvious, and the inadequacy of the current procedure so likely to result in the violation of constitutional rights, that the policymakers can reasonably be said to have been deliberately indifferent to the need." Lee, 250 F.3d at 682 (internal citations omitted).
The Ninth Circuit Court of Appeals previously has held that a § 1983 claim of municipality liability can survive a motion to dismiss even if the claim is "based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice." Id. at 682-83 (quoting Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988)). But these holdings pre-date the Supreme Court's decisions in Twombly and Iqbal. The Supreme Court has clarified that "an unadorned, the-defendant-unlawfully-harmed-me accusation" does not meet the Rule 8 pleading standards and cannot survive a motion to dismiss. Iqbal, 129 S.Ct. at 1949. Naked assertions of liability no longer suffice. Id. A plaintiff must allege "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.
The Court finds that Plaintiff has not alleged sufficiently a municipal policy, practice, or custom that led to the deprivation of his constitutional rights. Plaintiff's bare allegation that "[t]he fact that incorrect identifying information made its way into the indictment and arrest warrant was due to defective, inadequate, and otherwise negligent policies and procedures of the Gila County Attorney and of the Payson Policy Department," does not suffice. The Court therefore grants the Town of Payson's Motion to Dismiss with regard to Count I. But because the Court does not find that Plaintiff could never recover under these particular facts, the Court will allow Plaintiff to amend his § 1983 allegations. Plaintiff shall have ten (10) days from the date of this Order to file an Amended Complaint that sets out more fully his alleged bases for municipal liability.
Counts II III — False Arrest and Imprisonment
Defendant Town of Payson argues that A.R.S. § 12-820.05(B) gives it immunity from Plaintiff's false arrest/imprisonment claims. A.R.S. § 12-820.05(B) provides in relevant part: "A public entity is not liable for losses that arise out of and are directly attributable to an act or omission determined by a court to be a criminal felony by a public employee unless the public entity knew of the public employee's propensity for that action." And false arrest or imprisonment is a felony in Arizona. A.R.S. § 13-1303(C) ("Unlawful imprisonment is a class 6 felony unless the victim is released voluntarily by the defendant without physical injury in a safe place prior to arrest.").
Plaintiff does not argue that, if true, his allegations do not constitute false arrest/imprisonment as prescribed by A.R.S. § 13-1303(C). Nor does he argue that the Town of Payson had reason to believe its employees had a propensity for misidentifying criminal defendants. Plaintiff instead asserts that A.R.S. § 12-820.05(B) requires a criminal conviction of the public employee(s) before it applies.
This Court addressed whether A.R.S. § 12-820.05(B) requires a prior criminal conviction in McGrath v. Scott, 250 F.Supp.2d 1218 (D.Ariz. 2003). Relying on State v. Heinze, 993 P.2d 1090 (Ariz. Ct. App. 1999), the McGrath court held that A.R.S. § 12-820.05(B) applies even if no criminal court previously has found that the public employee(s) committed a felony. McGrath, 250 F.Supp.2d at 1234. In Heinze, the Arizona Court of Appeals analyzed a statute, A.R.S. § 41-621(L)(1), with the same exclusionary language as A.R.S. § 12-820.05(B) and found that a felony conviction was not a prerequisite to the exclusion. 993 P.2d at 1094.
Other judges in this District also have found that A.R.S. § 12-820.05(B) does not require a felony conviction for immunity to apply. See, e.g., Dominguez v. Denny, 2011 WL 905812, *5 (D.Ariz. March 15, 2011); Al-Asadi v. City of Phoenix, 2010 WL 3419728, *5 (D.Ariz. August 27, 2010). The undersigned agrees with the judges in this District who have held that A.R.S. § 12-820.05(B) may provide immunity even without a prior felony conviction. By the statute's own terms, any court can make the felony determination. The Court therefore finds that the undersigned can make the felony determination in the first instance.
Because § 12-820.05(B)'s immunity is "intended to protect a public entity from suit, not just liability, it should be resolved by the court at the earliest possible stage in the litigation." Al-Asadi, 2010 WL 3419728 at *6. The Court finds, taking Plaintiff's allegations as true, as it must at this stage in the litigation, that the public employees' actions here constituted felonious false arrest/imprisonment. The Court therefore concludes that the Town of Payson has immunity from Plaintiff's false arrest/imprisonment claims. Accordingly, the Court grants the Motion to Dismiss with regard to Counts II and III.
COUNT IV — MALICIOUS PROSECUTION
Plaintiff alleges that the Town and its employees instigated his unlawful prosecution. Unlike Plaintiff's § 1983 claim, Defendant Town of Payson's liability for the alleged state law torts may be based solely on a respondeat superior theory. The Town argues that Plaintiff has failed to state a malicious prosecution claim against it because neither it nor its employees were the proximate cause of Plaintiff's alleged harm.
The Town's argument borrows the "proximate cause" concept from negligence and § 1983 jurisprudence. But "proximate cause" per se is not a prima facie element of a malicious prosecution claim. The essential elements of a malicious prosecution claim are: "(1) a criminal prosecution, (2) that terminates in favor of plaintiff, (3) with defendants as prosecutors, (4) actuated by malice, (5) without probable cause, and (6) causing damages." Walsh v. Eberlein, 560 P.2d 1249, 1251 (Ariz. Ct. App. 1977). Malice can be inferred from lack of probable cause. Cullison v. City of Peoria, 584 P.2d 1156, 1160 (Ariz. 1978). Probable cause exists if officials have "a reasonable ground of suspicion, supported by circumstances sufficient to warrant an ordinarily prudent man in believing the accused is guilty of the offense." Walsh, 560 P.2d at 1251.
Defendant Town of Payson's proximate cause arguments perhaps are directed toward the third and sixth malicious prosecution elements — that the "defendants are the prosecutors" and "causing damages." "Malicious prosecution actions are not limited to suits against prosecutors," but may be brought against other people who wrongfully caused the filing of the charges. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002); see also Gonzales v. City of Phoenix, 52 P.3d 184 (Ariz. 2002) (upholding verdict against police detective and his city employer for malicious prosecution). But if an instigator of criminal charges loses control over the case once the prosecution is started, then the instigator's participation in the prosecution thereafter will not subject him to liability. Walsh, 560 P.2d at 1252. "Thus a malicious prosecution action will not lie where a prosecuting attorney is left to judge the propriety of proceeding with the charge and acts on his own initiative in doing so." Id.
The Gila County Attorney may have assumed sole responsibility for Plaintiff's prosecution, despite the mistakes of the Payson police officers, if the attorney acted on her own initiative after evaluating the propriety of the charges. Thus, the officers may not have been the "proximate cause" of Plaintiff's damages because the prosecutor's independent decision cut off their liability. At this stage in the proceedings, however, the Court cannot determine whether the county attorney acted wholly independently in making the charging decision. The Court therefore will deny the Town of Payson's Motion to Dismiss with regard to Count IV without prejudice to the Town re-urging its arguments at a later stage in the litigation.
COUNT V — GROSS NEGLIGENCE
Plaintiff alleges that the Defendant police officers were grossly negligent with respect to their investigation and misidentification of Plaintiff. Defendant Town of Payson argues that Plaintiff has not alleged facts sufficient to demonstrate that the Town or its employees acted with the egregiousness required for gross or heightened negligence.
Gross negligence differs from ordinary negligence in quality and not degree. Walls v. Arizona Dep't of Pub. Safety, 826 P.2d 1217, 1221 (Ariz. Ct. App. 1991). Gross negligence is "highly potent" and evinces a lawless and destructive spirit. Cullison, 584 P.2d at 1160. It is "action or inaction with reckless indifference to the result or the rights or safety of others." Williams v. Thude, 885 P.2d 1096, 1104 (Ariz. Ct. App. 1994). A person acts with reckless indifference if "he or she knows, or a reasonable person in his or her position ought to know: (1) that his action or inaction creates an unreasonable risk of harm; and (2) the risk is so great that it is highly probably that harm will result."
Ordinarily, gross negligence is an issue of fact for the jury. Luchanski v. Congrove, 971 P.2d 636, 639 (Ariz. Ct. App. 1999). To prevail on its Motion to Dismiss, the Town of Payson must show "that under no set of facts, or inferences from those facts, could [Plaintiff] have proved that [Town Defendants'] actions constituted gross negligence." Id. at 640. The Court finds that the Town has not met its burden. The Town has not demonstrated that under no set of facts and inferences could Plaintiff prove that the Town Defendants acted with reckless indifference to his constitutional rights. The Court therefore denies the Town's Motion to Dismiss as to Count V without prejudice to re-urging its arguments at a later date.
DISMISSAL OF THE PAYSON POLICE DEPARTMENT
Defendant Town of Payson argues that the Court must dismiss the Payson Police Department because the Department is not a jural entity capable of being sued. The Court agrees.
Federal Rule of Civil Procedure 17 provides that the law of the state where the district court is located shall dictate a party's capacity to sue or be sued. F.R.Civ.P. 17(b). The Arizona Constitution specifically confers the right to sue and be sued on municipal corporations. A.R.S. Const. Art. 14 § 1. Arizona has abrogated traditional sovereign immunity with respect to the state and any political subdivision of the state. A.R.S. § 12-820. Cities are "political subdivisions of the state." City of Tucson v. Fleischman, 731 P.2d 634, 637 (Ariz. Ct. App. 1986).
The Court did not find an Arizona case addressing whether a city's police department is also a political subdivision of the state capable of being sued. But a division of the Arizona Court of Appeals has held that the Maricopa County Sheriffs Office is a nonjural entity incapable of being sued. Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010). This precedent strongly indicates that Arizona courts would hold that a city police department cannot be sued. Moreover, as the Arizona Court of Appeals noted in its decision, this Court consistently has held that city police departments are nonjural entities. Id.; see, e.g., Gotbaum v. City of Phoenix, 617 F.Supp.2d 878, 886 (D.Ariz. 2008) ("Neither the Arizona legislature or the City has stated that the Police Department is a separate jural entity.")
The Court therefore finds that the Payson Police Department is a nonjural entity and must be dismissed from this suit. The dismissal of the Police Department will not deprive Plaintiff of any remedies because he has sued the Town of Payson, the proper political subdivision.
IT IS ORDERED GRANTING in part and DENYING in part Defendant Town of Payson's Motion to Dismiss (Doc. 12). The Motion is granted as to Counts I, II, III, and all claims against the Payson Police Department. The Motion is denied as to Counts IV and V.
IT IS FURTHER ORDERED that the Plaintiff shall have ten (10) days from the date of this Order to file the Amended Complaint. Regardless of the caption or content of the Amended Complaint, the Court reiterates that the Town of Payson has immunity from Plaintiff's false arrest/imprisonment claims and that the Payson Police Department is not an entity capable of being sued.
IT IS FURTHER ORDERED pursuant to the Notice at Docket 24, dismissing without prejudice Jane Doe Tieman, Officer Sonja Kay Davis, John Doe Davis, and Jane Doe Johnson for failure to serve.
DATED this 25th day of May, 2011.