Cobb v. Mohave, County of

1 WO ASH [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Brandon LaRon Cobb, Sr., et al., No. CV-24-08021-PCT-MTL (JZB) 10 Plaintiffs, 11 v. ORDER [12] County of Mohave, et al., [13] Defendants. [14] 15 Plaintiffs Brandon LaRon Cobb, Sr. and Jessica Nicole Cobb, who are not in 16 custody, brought this pro se civil rights action pursuant to 42 U.S.C. § 1983 . Defendants 17 have filed a Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil 18 Procedure 12(b)(6) or, in the alternative, for more definite statement pursuant to Federal 19 Rule of Civil Procedure 12(e). (Doc. 19.) Plaintiffs oppose the Motion. (Doc. 20.) 20 Defendants have filed a Reply. (Doc. 21.) 21 The Court will grant the Motion. 22 I. Legal Standards 23 Dismissal of a complaint, or any claim within it, for failure to state a claim under 24 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 25 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 26 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 , 1121–22 (9th Cir. 2008) (quoting 27 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 28 whether a complaint states a claim under this standard, the allegations in the complaint are 1 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 2 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A 3 pleading must contain “a short and plain statement of the claim showing that the pleader is 4 entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not necessary; the 5 statement need only give the defendant fair notice of what . . . the claim is and the grounds 6 upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation 7 omitted). To survive a motion to dismiss, a complaint must state a claim that is “plausible 8 on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. 9 Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 10 pleads factual content that allows the court to draw the reasonable inference that the 11 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 . Where the plaintiff 12 is a pro se prisoner, the court must “construe the pleadings liberally and [] afford the 13 petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 14 As a general rule, when deciding a Rule 12(b)(6) motion, the court looks only to the 15 face of the complaint and documents attached thereto. Van Buskirk v. Cable News 16 Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002); Hal Roach Studios, Inc. v. Richard Feiner 17 & Co., Inc., 896 F.2d 1542 , 1555 n.19 (9th Cir. 1990). If a court considers evidence outside 18 the pleading, it must convert the Rule 12(b)(6) motion into a Rule 56 motion for summary 19 judgment. United States v. Ritchie, 342 F.3d 903 , 907–08 (9th Cir. 2003). A court may, 20 however, consider documents incorporated by reference in the complaint or matters of 21 judicial notice without converting the motion to dismiss into a motion for summary 22 judgment. Id. 23 II. Discussion 24 In their seven count Complaint, Plaintiffs name the following Defendants: Mohave 25 County; “district prosecutor” Leah Nelson; and police officers Michael Nyquist, Robert 26 Tapia, and Cody Wilson. Plaintiffs assert seven claims in their Complaint: 27 “Claim 1: Malicious Prosecution of Child Abuse cases with no evidence” pursuant 28 to “42 U.S.C. § 1983, and 28 U.S.C. § 2860” (Doc. 1 at 1); 1 “Claim 2: Improper investigation of case that violated Constitutional, civil, and 2 victims’ rights” pursuant to “18 U.S.C. § 250 . . . 18 U.S.C. § 242 [and] 18 U.S.C. § 3771” 3 (Id. at 2); 4 “Claim 3: Monell liability against Mohave County under 42 U.S.C. § 1983” (Id.); 5 “Claim 4: Conspiracy Claim under 42 U.S.C. § 1985” (Id.); 6 “Claim 5: State Law Abuse of Process” pursuant to “A.R.S. § 44-2083” (Id. at 3); 7 “Claim 6: State Law Deformation [sic] of Character” pursuant to “A.R.S. § 238 1325” (Id.); and 9 “Claim 7: State Intentional Infliction of Emotional Distress” pursuant to “A.R.S. 10 Title 13 criminal code § 13-3623” (Id.). 11 Defendants seek dismissal on the basis that Plaintiffs’ Complaint fails to comply 12 with Rule 8 of the Federal Rules of Civil Procedure; Defendant Nelson is entitled to 13 absolute immunity; Mohave County is entitled to Eleventh Amendment immunity; 14 Plaintiffs failed to file a notice of claim; Plaintiffs have failed to state a claim for which 15 relief could be granted; the individual Defendants are entitled to qualified immunity; 16 Plaintiffs are not entitled to punitive damages; and Plaintiffs cannot recover damages for 17 non-parties. (Doc. 19). 18 The Court will discuss each Claim in turn. 19 A. Claim One 20 In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff “must 21 show that the defendants prosecuted him with malice and without probable cause, and that 22 they did so for the purpose of denying him equal protection or another specific 23 constitutional right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) 24 (citations omitted). “Malicious prosecution actions are not limited to suits against 25 prosecutors but may be brought, as here, against other persons who have wrongfully caused 26 the charges to be filed.” Id. at 1066–67 (citation omitted). 27 However, “[w]itnesses, including police officers, are absolutely immune from 28 liability for testimony at trial, and before a grand jury.” Lisker v. City of Los Angeles, 780 1 F.3d 1237 , 1241–42 (9th Cir. 2015) (citations omitted). “Absolute witness immunity also 2 extends to preparatory activities ‘inextricably tied’ to testimony, such as conspiracies to 3 testify falsely.” Id. (citations omitted). “Were it otherwise, a criminal defendant turned 4 civil plaintiff could simply reframe a claim to attack the preparation instead of the 5 absolutely immune actions themselves.” Id. (citation omitted). Therefore, to show that 6 Defendants are not entitled to absolute immunity, Plaintiffs must provide evidence that 7 Defendants engaged in “‘non-testimonial’ acts, such as ‘tampering with documentary or 8 physical evidence or preventing witnesses from coming forward’” that led to their 9 prosecution. Id. (citation omitted). 10 Here, Plaintiffs allege that Nelson “proceeded with a prosecution that lacked 11 evidence as noted by judges’ questioning and subsequent ruling”; Nelson, Nyquist, Tapia, 12 and Wilson “released actual statements, made by victim or facts pertaining to the case to 13 the public or press, as noted by numerous news reports”; Nyquist and Wilson “made an[] 14 unconstitutional search of [the] victim[’s] person during [the] initial investigation, stating 15 that victim has obvious signs of abuse, when signs w[]ere not obvious, noted by being 16 inadmissible evidence at trial”; Tapia “made unconstitutional search of victim before 17 forensic interview as noted by inadmissible evidence at trial”; and Nelson “did not insert 18 motion in a timely manner as described by judge before trial.” (Doc. 1 at 1). 19 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519 , 20 520–21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 21 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 22 civil rights complaint may not supply essential elements of the claim that were not initially 23 pled. Id. Plaintiffs’ allegations are vague and conclusory, and do not factually support a 24 claim of malicious prosecution. Plaintiffs’ do not describe how Nelson “proceeded with a 25 prosecution that lacked evidence”; when Nelson, Nyquist, Tapia, and Wilson “released 26 actual statements,” what these statements were, or how they were injured by them; or how 27 any purportedly unconstitutional action against a victim supports that their rights have been 28 violated in any way. Accordingly, Claim One will be dismissed. However, because Claim 1 One may possibly be cured by the allegation of additional facts sufficient to state a claim, 2 the dismissal will be without prejudice, and Plaintiffs will be given an opportunity to amend 3 their complaint to cure the deficiencies identified herein. 4 B. Claim Two 5 In Claim Two, Plaintiffs assert a claim of “improper investigation” pursuant to 18 6 U.S.C. § 250 , 18 U.S.C. § 242 , and 18 U.S.C. § 3771 . None of these statutes, however, 7 authorize a private civil right of action. Sections 242 and 250 are criminal statutes; criminal 8 statutes do not confer a private right of action in a civil lawsuit. See Aldabe v. Aldabe, 616 9 F.2d 1089 , 1092 (9th Cir. 1980) (claims brought under 18 U.S.C. §§ 241 and 242 “provide 10 no basis for civil liability”); Bey v. City of Oakland, No. 14-CV-01626-JSC, 2014 WL 11 4220319, at *3 (N.D. Cal. Aug. 25, 2014) (dismissing claims brought by private citizens 12 under 18 U.S.C. §§ 241 , 242, 245 and 249 on the ground that “[a] private citizen may not 13 sue under the federal criminal laws absent some language in the statute that suggests a 14 private right of action”). Section 3771 is the crime victim bill of rights that affords certain 15 rights to the victims of crimes in a criminal action. This action, however, is not a criminal 16 action. Accordingly, § 3771 is inapplicable. Claim Two will thus be dismissed. Further, 17 because these defects cannot be cured by the allegation of additional facts, Claim Two will 18 be dismissed with prejudice.1 19 C. Claim Three 20 Plaintiffs assert a Monell claim against Mohave County in Claim Three, alleging 21 that Nelson and Nyquist—“as policy-makers for Mohave County”—had “policies and 22 practices [that] resulted in the prosecution and arrest of Plaintiffs without probable cause,” 23 and “resulted in the unconstitutional search of [Plaintiffs’] daughter’s person leading to the 24 unconstitutional prosecution and arrest of Plaintiffs without probable cause.” (Doc. 1 at 25 2). 26 To state a Monell claim based on a policy, practice or custom of Defendants, [27] 1 The Court further finds that Claim Two, if properly brought pursuant to § 1983, is [28] more properly construed as a claim of malicious prosecution, and is therefore duplicative of Claim One. 1 Plaintiff must allege facts showing (1) that his constitutional rights were violated by an 2 employee or employees of the Defendant; (2) that the Defendant has customs or policies 3 that amount to deliberate indifference; and (3) that the policies or customs were the moving 4 force behind the violation of Plaintiff’s constitutional rights in the sense that the Defendant 5 could have prevented the violation with an appropriate policy. See Gibson v. Cnty. of 6 Washoe, 290 F.3d 1175, 1193-94 (9th Cir. 2002). “Policies of omission regarding the 7 supervision of employees . . . can be policies or customs that create . . . liability . . . , but 8 only if the omission reflects a deliberate or conscious choice to countenance the possibility 9 of a constitutional violation.” Id. at 1194 (quotations omitted). 10 A “decision not to train certain employees about their legal duty to avoid violating 11 citizens’ rights may rise to the level of an official government policy for purposes of 12 § 1983.” Connick v. Thompson, 563 U.S. 51, 60 (2011). To support a Monell claim for 13 failure to train under § 1983, a plaintiff must allege facts demonstrating that the local 14 government’s failure to train amounts to “deliberate indifference to the rights of persons 15 with whom the [untrained employees] come into contact.” Id. at 61 (citing City of Canton 16 v. Harris, 489 U.S. 378, 388 (1989)). 17 Deliberate indifference may be shown if there are facts to support that “in light of 18 the duties assigned to specific officers or employees, the need for more or different training 19 is obvious, and the inadequacy so likely to result in violations of constitutional rights, that 20 the policy-makers . . . can reasonably be said to have been deliberately indifferent to the 21 need.” Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (citing Canton, 489 U.S. at 22 390). While “[a] pattern of similar constitutional violations by untrained employees is 23 ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to 24 train” Connick, 563 U.S. at 62 , a plaintiff may still prove a failure-to-train claim without 25 showing a pattern of constitutional violations where a violation “may be a highly 26 predictable consequence of a failure to equip law enforcement officers with specific tools 27 to handle recurring situations.” Long v. Cnty. of L.A., 442 F.3d 1178, 1186 (9th Cir. 2006) 28 (internal citation omitted). In such instances, “failing to train could be so patently obvious 1 that [an entity] could be liable under § 1983 without proof of a pre-existing pattern of 2 violations.” Connick, 563 F.3d at 64. 3 A plaintiff may prove the existence of a custom or informal policy with evidence of 4 repeated constitutional violations for which the errant municipal officials were not 5 discharged or reprimanded. See Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992); 6 Gomez, 255 F.3d at 1127. 7 Further, a supervisor’s ratification of another’s conduct can form the basis for 8 liability if the ratification decision approves both the subordinate’s decision and the basis 9 for it, and the ratification decision is the product of a conscious choice to ratify the conduct. 10 Peschel v. City of Missoula, 686 F. Supp. 2d 1092, 1102 (D. Mont. 2008) (citations and 11 quotations omitted). 12 Here, however, Plaintiffs do not identify or describe in any way what “policies and 13 practices” of Mohave County caused their alleged injuries. For example, Plaintiffs do not 14 describe what training, if any, the individual Defendants received pursuant to any policy 15 or practice of Mohave County, nor do they explain how such training is deliberately 16 indifferent to their constitutional rights. Plaintiffs further allege no facts to support that 17 Nelson and Nyquist are policy-makers for Mohave County for any policy relevant to their 18 injuries.2 As with Claim One, Plaintiffs’ allegations are vague and conclusory. Ivey, 673 19 F.2d at 268. Accordingly, Claim Three will be dismissed. However, because Claim Three 20 may possibly be cured by the allegation of additional facts sufficient to state a claim, the 21 dismissal will be without prejudice, and Plaintiffs will be given an opportunity to amend 22 their complaint to cure the deficiencies identified herein. 23 D. Claim Four 24 Plaintiffs asserts a conspiracy claim pursuant to 42 U.S.C. § 1985 in Claim Four. 25 Plaintiffs allege that “Nelson and Nyquist conspired to bring charges against plaintiffs for 26 reasons of racial and class-based motivation without probable cause”; “Nelson used [27] 2 The Court notes that Nelson appears to be only an assistant county attorney [28] (Matthew J. Smith has been Mohave County Attorney since 2003), and, by their own allegation, Nyquist is only a police sergeant. 1 intimidating language/circumstances to get plaintiffs to plea to lesser charges”; “Nyquist 2 used intimidating language/circumstances to get plaintiffs to confess, while plaintiffs were 3 filing formal complaint against detectives for wrongdoing”; and that “Tapia used 4 intimidating circumstances against victim during forensic interview” and “ den[ied] her 5 right to leave after she stated she wanted to many times.” (Doc. 1 at 3). 6 Section 1985, “conspiracy to interfere with civil rights,” applies when two or more 7 persons conspire to (1) prevent a person from accepting or holding office; (2) intimidate a 8 witness or juror in a legal proceeding, or (3) deny a person equal protection, the right to 9 vote, or “any right or privilege of a citizen of the United States.” 42 U.S.C. § 1985 . To 10 state a conspiracy claim, a plaintiff “must show ‘an agreement or ‘meeting of the minds’ 11 to violate constitutional rights.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) 12 (citations omitted). The Court “need not, however, accept as true allegations that are 13 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell 14 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended on other grounds, 275 15 F.3d 1187 (9th Cir. 2001); see also Woodrum v. Woodward County, 866 F.2d 1121 , 1126 16 (9th Cir. 1989) (conclusory allegations of conspiracy did not support a § 1983 claim); 17 Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621 , 626 (9th Cir. 1988) (“A mere 18 allegation of conspiracy without factual specificity is insufficient.”). 19 Here, Plaintiffs have not alleged any facts from which to infer a conspiracy between 20 one or more Defendants to violate Plaintiffs’ constitutional rights. Moreover, it is not clear 21 from Plaintiffs’ allegations what federal or constitutional right Defendants allegedly 22 conspired to violate. Plaintiffs’ allegations are again vague and conclusory, and 23 insufficient to state a claim of conspiracy for which relief could be granted. Claim Four 24 will thus be dismissed. However, because Claim Four may possibly be cured by the 25 allegation of additional facts sufficient to state a claim, the dismissal will be without 26 prejudice, and Plaintiffs will be given an opportunity to amend their complaint to cure the 27 deficiencies identified herein. 28 . . . . 1 E. Claims Five, Six, and Seven 2 Plaintiffs make no allegations in Claims Five, Six, and Seven, and these claims can 3 thus be dismissed on that basis alone. Fed. R. Civ. P. 8(a), 12(b)(6). 4 Further, under Arizona state law, a plaintiff must file a Notice of Claim with the 5 public employee within 180 days of the incident from which the claim arose, otherwise the 6 action is barred and may not be maintained. Ariz. Rev. Stat. § 12–821.01(A). In addition, 7 the plaintiff must give notice to a public employee’s employer; “[a] claimant who asserts 8 that a public employee’s conduct giving rise to a claim for damages was committed within 9 the course and scope of employment must give notice of the claim to both the employee 10 individually and to his employer.” Crum v. Superior Court In and For Cnty. of Maricopa, [11] 922 P.2d 316, 317 (Ariz. Ct. App. 1996). For service of process of the notice of claim on 12 an individual, the Arizona rules of civil procedure state: [13] [A]n individual may be served by: (1) delivering a copy of the 14 summons and the pleading being served to that individual personally; (2) leaving a copy of each at that individual’s 15 dwelling or usual place of abode with someone of suitable age 16 and discretion who resides there; or (3) delivering a copy of each to an agent authorized by appointment or by law to 17 receive service of process. 18 Ariz. R. Civ. P. 4.1(d). 19 Arizona courts have held that plaintiffs who do not strictly comply with section 1220 821.01(A) are barred from bringing suit. Harris v. Cochise Health Sys., 160 P.3d 223 , 230 21 (Ariz. Ct. App. 2007) (“[c]ompliance with the notice provision of § 12-821.01(A) is a 22 mandatory and essential prerequisite to such an action”). “Actual notice and substantial 23 compliance do not excuse failure to comply with the statutory requirements of . . . § 1224 821.01(A).” Falcon ex rel. Sandoval v. Maricopa Cnty., 144 P.3d 1254, 1256 (Ariz. Ct. 25 App. 2006 ). 26 An assertion that the plaintiff has not complied with the notice-of-claim statute is 27 an affirmative defense. Lee v. State, 242 P.3d 175, 178 (Ariz. Ct. App. 2010). Therefore, 28 the defendant bears the burden of proving that the plaintiff failed to comply. See Pfeil v. 1 Smith, 900 P.2d 12, 14 (Ariz. Ct. App. 1995) (“[i]n a civil action . . . the defendant has the 2 burden of proving an affirmative defense”). 3 Defendants assert, and Plaintiffs do not refute, that Plaintiffs failed to file a timely 4 notice of claim (or, indeed, any notice of claim) before initiating this action. Accordingly, 5 because this defect cannot be remedied, Claims Five, Six, and Seven will be dismissed with 6 prejudice. 7 III. Leave to Amend 8 For the foregoing reasons, the Court will dismiss the Complaint for failure to state 9 a claim. Fed. R. Civ. P. 12(b)(6). However, as noted, some of the claims may be remedied 10 by the allegation of additional facts. Plaintiffs will thus be given an opportunity to file an 11 amended complaint that cures the deficiencies identified herein. As such, the Court does 12 not reach Defendants’ immunity arguments. Defendants remain free to reassert their 13 immunity arguments, if applicable, in response to any amended complaint filed by 14 Plaintiffs. 15 Within 30 days, Plaintiffs may submit an amended complaint to cure the 16 deficiencies outlined above. Plaintiffs must clearly designate on the face of the document 17 that it is the “First Amended Complaint.” The first amended complaint must be retyped or 18 rewritten in its entirety, and may not incorporate any part of the original Complaint by 19 reference. Plaintiffs may include only one claim per count. 20 A first amended complaint supersedes the original Complaint. Ferdik v. Bonzelet, [21] 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 22 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat the original Complaint 23 as nonexistent. Ferdik, 963 F.2d at 1262 . Any cause of action that was raised in the 24 original Complaint and that was voluntarily dismissed or was dismissed without prejudice 25 is waived if it is not alleged in a first amended complaint. Lacey v. Maricopa Cnty., 693 26 F.3d 896 , 928 (9th Cir. 2012) (en banc). 27 . . . . 28 . . . . 1| IV. Warnings 2 A. Address Changes 3 If Plaintiffs’ address changes, Plaintiffs must file and serve a notice of a change of 4| address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiffs 5 | must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. 7 B. Possible Dismissal 8 If Plaintiffs fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 10 | F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order 11 | of the Court). 12 IT IS ORDERED: 13 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ Motion to Dismiss (Doc. 19). 15 (2) Defendants’ Motion to Dismiss (Doc. 19) is granted. 16 (3) Claims One, Three, and Four are dismissed without prejudice. Claims 17 | Two, Five, Six, and Seven are dismissed with prejudice. 18 (4) Plaintiffs have 30 days from the date this Order is filed to file a first amended 19 | complaint in compliance with this Order. 20 (5) If Plaintiffs fail to file a first amended complaint within 30 days, the Clerk 21 of Court must, without further notice, enter a judgment of dismissal of this action with 22 | prejudice and deny any pending unrelated motions as moot. 23 Dated this 14th day of February, 2025. [24] Michal T. Hburde Michael T. Liburdi 27 United States District Judge