Fiori v. Peoria Police Department

1 WO 2 NOT FOR PUBLICATION [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Damon G Fiori, No. CV-19-03074-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Peoria Police Department, et al., 13 Defendants. [14] 15 Pending before the Court is Defendants’ Motion to Dismiss. (Doc. 4). Plaintiff 16 filed a Response1 (Doc. 12) and Defendants filed a Reply (Doc. 13). 17 I. BACKGROUND 18 On January 25, 2019, pro se Plaintiff Damon Fiori filed a Complaint against the 19 Peoria Police Department (“Peoria PD”); the City of Peoria (the “City” or “Peoria”); Peoria 20 Police Chief Arthur Miller (“Defendant Miller”); and former Peoria Police Chief Roy 21 Minter (“Defendant Minter”) (collectively “Defendants”). (Doc. 1 at 26-34). Plaintiff did 22 not serve any of Defendants with the Complaint, and on April 22, 2019, Plaintiff filed an 23 Amended Complaint that he only served on the City and Peoria PD. (Id. at 6-19, 43-44). 24 The Amended Complaint contains thirteen counts: (1) “Malicious Prosecution”; (2) 25 “Negligence Per Se [sic]”; (3) “Equal Protections [sic] - 42 U.S.C. § 1983”; (4) “Violation 26 of Due Process”; (5) “Obstruction of Justice; (6) “False Imprisonment”; (7) “Intentional [27] 1 Plaintiff’s request for oral argument is denied because the parties have had an opportunity 28 to adequately brief the issues and oral argument would not aid the Court’s resolution of the motion. See Fed. R. Civ. P. 78(b); LRCiv. 7.2(f) 1 Infliction of Emotional Distress”; (8) “Abuse of Process”; (9) “Bad Faith”; (10) 2 “Defamation”; (11) “Punitive Damages”; (12) “Miscellaneous Damages”; and (13) 3 “Violation of Due Process and Civil Rights.” (Id. at 11-18). Defendants removed the 4 action to this Court on May 14, 2019. (Id. at 1-3). 5 In his Amended Complaint, Plaintiff alleges his ex-wife’s family gave Defendants 6 “free food, drinks and other services” and in return, Defendants: (1) improperly declined 7 to prosecute Plaintiff’s ex-wife for trespass, domestic violence, and property damage that 8 Plaintiff reported between October 2016 and February 2017; (2) arrested and charged 9 Plaintiff with domestic violence reported by his ex-wife in March 2017, despite having 10 “sufficient evidence” that he was innocent; and (3) prosecuted Plaintiff based on “various 11 misleading, false, or improperly implied evidence to the created story line used by the 12 Prosecutors as equally created by his ex-wife, and the Peoria Police Department,” including 13 “falsified” information from a Peoria PD officer regarding “how he obtained and handled 14 evidence in support of the criminal investigation.” (Id. at 7-11). Plaintiff’s criminal trial 15 resulted in an acquittal. 16 II. DISCUSSION 17 Defendants argue that Plaintiff’s Amended Complaint should be dismissed because: 18 (1) he fails to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), (2) 19 Defendants Miller and Minter were never served with the Amended Complaint, and (2) 20 that Peoria PD is a non-jural entity that cannot be sued. Plaintiff filed a Response; however, 21 his response failed to substantively respond to Defendants’ arguments. The Court may 22 construe Plaintiff’s failure to respond to all of Defendants’ arguments as consent to 23 granting the Motion to Dismiss on those grounds. Garcia v. GMAC Mortgage, LLC, 2009 24 WL 2782791 , at * 1 (D. Ariz. 2009) (“If an argument is not properly argued and explained, 25 the argument is waived.”); Doe v. Dickenson, 2008 WL 4933964 at *5 (D. Ariz. 2008) 26 (“[T]he Court is entitled to treat Plaintiffs’ failure to respond as waiver of the issue and 27 consent to Defendants argument”); Currie v. Maricopa County Cmty. Coll. Dist., 2008 WL 28 2512841, at *2 n.1 (D. Ariz. June 20, 2008) (finding that plaintiff’s failure to respond to an 1 argument serves as an independent basis upon which the court can grant defendant’s 2 motion to dismiss). Nonetheless, the Court will address the merits of Defendants’ 3 arguments. 4 A. Peoria PD is a Non-Jural Entity 5 Defendants argue, and Plaintiff does not dispute, that Peoria PD is a non-jural entity. 6 The Court agrees. “A plaintiff may not bring a claim against a governmental agency or 7 department unless it enjoys a separate and distinct legal existence.” Williams v. City of 8 Mesa Police Dept., 2009 WL 2568640 , at *2 (D. Ariz. Aug. 18, 2009). “State agencies 9 that may sue and be sued are known as jural entities; non-jural entities are not subject to 10 suit.” Morgan v. Arizona, 2007 WL 2808477 , at *8 (D. Ariz. 2007) (citations omitted). 11 Numerous courts have held that a police department is a non-jural entity that is 12 incapable of suing and being sued, rather a police department is a subdivision of the 13 political entity to which it belongs. See e.g., Joseph v. Dillard’s, Inc., 2009 WL 5185393 , 14 at *5 (D. Ariz. Dec. 24, 2009) (“Because the Phoenix Police Department is a department 15 of the City of Phoenix, and because actions against the City of Phoenix must be brought in 16 the city’s corporate name, the proper defendant is the City of Phoenix, not the Phoenix 17 Police Department.”); Gotbaum v. City of Phoenix, 617 F. Supp. 2d 878, 886 (D. Ariz. 18 2008) (concluding that that “[c]onsistent with its previous decision in [Wilson v. Maricopa 19 County, 2005 WL 3054051 , at *1 (D. Ariz. Nov. 15, 2005)], the Court concludes that the 20 Phoenix Police Department is a subpart of the city of Phoenix, not a separate entity for 21 purposes of suit.”). Peoria PD, therefore, is a subpart of the City and not a separate entity 22 for the purposes of a lawsuit. Moreover, as the City is already named as a Defendant, 23 Peoria PD’s “presence is superfluous.” Scotti v. City of Phoenix, 2010 WL 994649 , at *5 24 (D. Ariz. March 7, 2010). Accordingly, Peoria PD is a non-jural entity and is dismissed 25 with prejudice. 26 B. Failure to Serve Process on Defendants Miller and Minter 27 Pursuant to Rule 12(b)(5), Defendants move to dismiss Defendants Miller and 28 Minter for insufficient service of process. “A Rule 12(b)(5) motion is the proper vehicle 1 for challenging the mode of delivery or lack of delivery of the summons and complaint.” 2 Murgia v. United States, 2007 WL 9724214 , at *1 (D. Ariz. July 12, 2007) (internal 3 quotation and citation omitted). Rule 4(m) provides that a plaintiff has 90 days after the 4 filing of the complaint to serve the summons and complaint upon a defendant. Dismissal 5 of a party is appropriate where a plaintiff fails to show good cause for delays in service. 6 See Walker v. Sumner, 14 F.3d 1415 , 1421–22 (9th Cir. 1994). Good cause only exists in 7 rare circumstances. See generally Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 8 1987) (holding strategic reasons do not constitute good cause); Townsel v. County of 9 Contra Costa, California, 820 F.2d 319, 320 (9th Cir. 1987) (finding inadvertence or 10 negligence does not constitute good cause). 11 Here, Plaintiff filed his Amended Complaint on April 22, 2019. Pursuant to Rule 12 4(c) and (m), he was required to serve all Defendants with a copy of the Summons and 13 Complaint within 90 days of filing the Complaint—on or before July 22, 2019.2 Fed. R. 14 Civ. P. 4(c), (m). To date, Plaintiff has not served Defendants Miller and Minter. 15 Therefore, absent a showing of good cause, Defendants Miller and Minter must be 16 dismissed. See Fed. R. Civ. P. 4(m); Walker, 14 F.3d at 1421–22. 17 Plaintiff fails to provide any argument or reason for his delay in effecting service on 18 Defendants Miller and Minter. Although the Court generally maintains a liberal policy 19 with regard to pro se litigants, pro se litigants are not exempt from complying with the 20 basic rules for service of process. See American Ass’n of Naturopathic Physicians v. 21 Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000). Additionally, ignorance of the law is not 22 an excuse for failure to comply with service of process rules. Dunmars v. City of Chicago, [23] 22 F. Supp. 2d 777, 783 (N.D. Ill. 1998). Accordingly, even though the Court may grant 24 an extension of time for service of process based on “good cause,” Plaintiff does not argue 25 that good cause exists, and the Court finds no evidence of good cause. Therefore, the Court 26 will dismiss Defendants Miller and Minter without prejudice. [27] 28 2 As the ninetieth day fell on Sunday, July 21, 2019, pursuant to Rule 6(a)(1)(C), the deadline to serve was extended to Monday, July 22, 2019. 1 C. Rule 12(b)(6) 2 To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a 3 complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action”; it must contain factual allegations sufficient to “raise the right of relief above the 5 speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley 6 v. Gibson, 355 U.S. 41, 47 (1957)). While “a complaint need not contain detailed factual 7 allegations . . . it must plead ‘enough facts to state a claim to relief that is plausible on its 8 face.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting 9 Twombly, 550 U.S. at 570 ). “A claim has facial plausibility when the plaintiff pleads 10 factual content that allows the court to draw the reasonable inference that the defendant is 11 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing 12 Twombly, 550 U.S. at 556 ). The plausibility standard “asks for more than a sheer 13 possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 14 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between 15 possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 16 555) (internal citations omitted). 17 When analyzing a complaint for failure to state a claim, “allegations of material fact 18 are taken as true and construed in the light most favorable to the non-moving party.” Smith 19 v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, “the tenet that a court must 20 accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of 21 action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678 . 22 Legal conclusions couched as factual allegations are not given a presumption of 23 truthfulness, and “conclusory allegations of law and unwarranted inferences are not 24 sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 25 1998). Moreover, even when a complaint’s allegations are “consistent with [ ] unlawful” 26 conduct, a court may conclude they do not plausibly suggest such conduct because they 27 are “not only compatible with, but indeed . . . more likely explained by, lawful . . . 28 behavior.” Iqbal, 556 U.S. at 680 . 1 1. Malicious Prosecution (Count I) 2 In Count One, Plaintiff asserts a malicious prosecution claim; however, he does not 3 specify whether the claim is alleged solely under state law or also under 42 U.S.C. § 1983 4 (“Section 1983”). (Doc. 1 at 11-12). An essential element of either a Section 1983 or state 5 malicious prosecution claim is a prosecution without probable cause. See Freeman v. City 6 of Santa Ana, 68 F.3d 1180 (9th Cir. 1995) (holding that in order to state a claim of 7 malicious prosecution under § 1983, a plaintiff must allege that the defendants prosecuted 8 plaintiff “with malice and without probable cause, and that they did so for the purpose of 9 denying [plaintiff] equal protection or another specific constitutional right.”); Slade v. City 10 of Phoenix, 541 P.2d 550, 552 (Ariz. 1975) (“The essential elements of malicious 11 prosecution are (1) a criminal prosecution, (2) that terminates in favor of plaintiff, (3) with 12 defendants as prosecutors, (4) actuated by malice, (5) without probable cause, and (6) 13 causing damages.”). Defendants argue, among other things, that Plaintiff has not alleged 14 sufficient facts to show a lack of probable cause. (Doc. 4 at 4-8). The Court agrees. 15 In his Amended Complaint, Plaintiff alleges that Peoria PD arrested him on March 16 5, 2017, and in August 2017 he “moved to have his arrest move quickly to [t]rial[;]” 17 however, the “City of Peoria Prosecutors” moved three time to continue the trial, which 18 Plaintiff alleges was an effort “to reconcile the various misleading, false, or improperly 19 implied evidence to the created story line used by the Prosecutors as equally created by 20 [Plaintiff’s ex-wife], and the Peoria [PD].” (Doc. 1 at 10). Plaintiff further alleges that 21 after a two-day trial he was found “Not Guilty” by a jury. (Id. at 10-11). 22 If there was probable cause to institute a proceeding against Plaintiff, “such fact 23 constitutes a complete and absolute defense to an action for malicious prosecution.” Slade, [24] 541 P.2d at 553 . Plaintiff contends that Defendants “should have professionally known 25 that they significantly lacked any probably [sic] cause” to prosecute; however, Plaintiff 26 does not support this allegation with factual evidence. (Doc. 1 at 11). Rather he appears 27 to rely upon his acquittal as evidence of a lack of probable cause. Moreover, Plaintiff 28 concedes that Peoria PD received a “criminal accusation that he had caused physical harm 1 to [his ex-wife]” prior to his arrest. (Id. at 10). Plaintiff contends that Peoria PD was 2 provided with “sufficient evidence” that demonstrated that his ex-wife’s claims were 3 unsubstantiated; however, he fails to identify what evidence he provided or how it negated 4 probable cause. Thus, Plaintiff fails to plead facts to demonstrate that Defendants lacked 5 probable cause, which is a necessary element of state or federal malicious prosecution 6 claim. Slade, 541 P.2d at 553 (finding “that there was no showing of lack of probable 7 cause [because] [t]he defendant police officer received the information concerning the 8 alleged assault from the victim. . . . With such information it was reasonable for the officer 9 to believe that the accused had committed an offense.”). Consequently, Plaintiff has failed 10 to plead a plausible malicious prosecution claim pursuant to either state law or Section 11 1983. 12 2. Negligence Per Se (Count II) 13 In Count Two, Plaintiff asserts a negligence per se claim. (Doc. 1 at 12). “[A] claim 14 for negligence per se must be based on a statute enacted ‘for the protection and safety of 15 the public.’” Steinberger v. McVey ex rel. County of Maricopa, 318 P.3d 419, 433 (Ariz. 16 Ct. App. 2014) (quoting Good v. City of Glendale, 722 P.2d 386, 389 (Ariz. Ct. App. 17 1986)). Plaintiff fails to identify a specific statute that Defendants allegedly violated and 18 therefore his claim for negligence per se fails. 19 However, as the Court must liberally construe Plaintiff’s Amended Complaint, the 20 Court will also construe and analyze Count Two as a claim for common law negligence. 21 In Arizona, a negligence claim requires a plaintiff to establish the following elements: “(1) 22 a duty requiring the defendant to conform to a certain standard of care; (2) a breach by the 23 defendant of that standard; (3) a causal connection between the defendant’s conduct and 24 the resulting injury; and (4) actual damages.” Gibson v. Cty. of Maricopa, 2017 WL 25 168035, at *3 (D. Ariz. Jan. 17, 2017) (citing Gipson v. Kasey, 150 P.3d 228, 230 (Ariz. 26 2007)). Plaintiff alleges that “Defendants had a duty to properly train their police officers 27 in proper and impartial investigative techniques” (Doc. 1 at 12). Plaintiff further alleges 28 that Defendants had a “duty to provide professional, impartial, and qualified investigative 1 techniques to ensure proper prosecution and avoiding adverse influences and erroneous 2 prosecutions of Action arising from its investigation and work product.” (Id.) However, 3 Plaintiff does not provide facts to demonstrate how Defendants breached these duties. In 4 other words, Plaintiff’s negligence claim identifies purported duties, states that Defendants 5 breached those duties, and claims that those breaches caused him harm, without explaining 6 how or identifying facts to support those conclusory allegations. Plaintiff’s general 7 discussion of his discontentment with how Peoria PD investigated the assault accusation is 8 insufficient to state a claim of negligence against Defendants. Accordingly, Plaintiff has 9 failed to state a claim for negligence per se and common law negligence. 10 3. Equal Protection – 42 U.S.C. § 1983 (Count III) 11 Plaintiff alleges that “Defendants, all of them, acts [or lack thereof], performances, 12 failure to perform, and adversely influenced in varying capacities has violated this 13 Plaintiffs equal protections under the U.S. Constitution.” (Doc. 1 at 13) (brackets in 14 original). Plaintiff further alleges that “[t]he conduct was unequal, unjust, and oppressive 15 in the administration of the laws and justice against this Plaintiff, by all of the varying 16 Defendants.” (Id.) 17 “The Equal Protection Clause . . . is essentially a direction that all persons similarly 18 situated should be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 19 U.S. 432 , 439 (1985). “‘To state a claim . . . for a violation of the Equal Protection Clause 20 . . . a plaintiff must show that the defendants acted with an intent or purpose to discriminate 21 against the plaintiff based upon membership in a protected class.’” Lee v. City of Los 22 Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d 1193 , 23 1194 (9th Cir. 1998) ); Rosenbaum v. City & Cty. of San Francisco, 484 F.3d 1142 , 1153 24 (9th Cir. 2007) (“To show discriminatory purpose, a plaintiff must establish that ‘the 25 decision-maker . . . selected or reaffirmed a particular course of action at least in part 26 “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’”) 27 (citations omitted)). Plaintiff does not allege a membership in a protected class or that 28 Defendants acted in a discriminatory manner because of his membership in an identifiable 1 group. 2 However, the Supreme Court has “recognized successful equal protection claims 3 brought by a ‘class of one,’ where the plaintiff alleges that []he has been intentionally 4 treated differently from others similarly situated and that there is no rational basis for the 5 difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Plaintiff 6 has also not stated a claim under this standard, because he has not shown that Defendants 7 intentionally treated him differently from other similarly situated individuals. Plaintiff’s 8 conclusory allegations that he was treated “unequal” are insufficient to bring a class of one 9 equal protection claim. Accordingly, Plaintiff has failed to state a claim for a violation of 10 the Equal Protection Clause. 11 4. Violation of Due Process (Count IV) 12 Plaintiff alleges that “Defendants, all of them, had a duty to uphold the highest level 13 of integrity, impartiality, professionalism and follow policies, procedure and statutes in an 14 [sic] meaningful way, and without deliberate or negligent compromise. (Doc. 1 at 13). 15 Plaintiff further alleges that Defendants “operated in bad faith by creating a narrative which 16 was inconsistent with facts, and prosecuting a case knowing, or should have reasonably 17 known, that the facts did not support” and “not acting impartially in its criminal 18 investigation” of Plaintiff. (Id.) 19 The Due Process Clause of the Fourteenth Amendment provides that no state shall 20 “deprive any person of life, liberty, or property without due process of law . . . .” U.S. 21 Const. amend. XIV, § 1 ; see also Sagana v. Tenorio, 384 F.3d 731, 742 (9th Cir. 2004). 22 The crux of Plaintiff’s claim is that Defendants knowingly pursued false criminal charges 23 against Plaintiff in violation of his due process. However, Plaintiff does not explain how 24 Defendants should have known that they were pursing false criminal charges against him, 25 nor does he explain how they were not acting impartially. Rather, Plaintiff asks this Court 26 to infer misconduct from unsupported allegations, which it will not do. Accordingly, 27 Plaintiff has failed to plead a cognizable Due Process claim. [28] 1 5. Obstruction of Justice (Count V) 2 Liberally construing Plaintiff’s claim for obstruction of justice, it appears he is 3 arguing that Defendants conspired to obstruct justice by allowing false information to be 4 submitted in connection with his state criminal charges with the purpose of denying him 5 equal protection of the law in violation of 42 U.S.C. § 1985 (2) (“Section 1985(2)”). 6 Section 1985(2) prohibits conspiracy with the purpose of obstruction of justice “with intent 7 to deny any citizen the equal protection of the laws . . . .” The statutory requirement of 8 intent to deprive a person of equal protection or equal privileges means there “must be 9 some racial or perhaps otherwise class-based, invidiously discriminatory animus behind 10 the conspirators’ actions.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); see Bray v. 11 Alexandria Women’s Health Clinic, 506 U.S. 263 , 267–68 (1993). In addition, a plaintiff 12 must state specific facts, not mere conclusory statements, to support the existence of the 13 alleged conspiracy. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989); Williams 14 v. Sumner, 648 F. Supp. 510, 513 (D. Nev. 1986). Although pro se “pleadings are liberally 15 construed, particularly where civil rights claims are involved,” Balistreri v. Pacifica Police 16 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990), a “liberal interpretation of a civil rights complaint 17 may not supply essential elements of the claim that were not initially pled.” Ivey v. Board 18 of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 19 Plaintiff has not pled facts to meet the discriminatory-animus requirement. 20 Moreover, Plaintiff’s allegations of conspiracy are merely conclusory. In other words, the 21 Amended Complaint is void of any factual allegations showing that Defendants had an 22 agreement or “meeting of the minds” to violate Plaintiff’s constitutional rights. Plaintiff’s 23 dissatisfaction with Defendants’ conduct coupled with his conclusory allegations of 24 conspiracy are not sufficient to state a claim under Section 1985(2). 25 6. False Imprisonment (Count VI) 26 Plaintiff alleges that Defendants “caused an unlawful detention without consent or 27 without lawful authority” and the “[m]alicious acts of the Defendants, collectively and 28 individually, was deliberate, thoughtful, and with the sole intentions to cause unneeded 1 personal and professional harm” to Plaintiff. (Doc. 1 at 14). However, “[i]f the arrest or 2 imprisonment has occurred pursuant to valid legal process, the fact that the action was 3 procured maliciously and without probable cause does not constitute false arrest or false 4 imprisonment; the proper remedy under such circumstances is an action for malicious 5 prosecution.” See Slade, 541 P.2d at 552 (internal citations omitted). Plaintiff’s Amended 6 Complaint is devoid of facts to suggest his arrest or imprisonment without a valid legal 7 process. Rather, Plaintiff contends that he provided “sufficient evidence” to Peoria PD that 8 established his innocence. However, even if Peoria PD did not have probable cause to 9 arrest or imprison Plaintiff, that does not mean that it was done without a valid legal 10 process. Plaintiff has not pled sufficient facts to state a plausible claim for false 11 imprisonment. 12 7. Intentional Infliction of Emotional Distress (Count VII) 13 “To recover for intentional infliction of emotional distress [in Arizona], a plaintiff 14 must show that the defendant’s conduct was extreme and outrageous, causing plaintiff 15 severe emotional distress; physical injury need not occur.” Duke v. Cochise County, 938 16 P.2d 84 , 87 (Ariz. Ct. App. 1996). A defendant must either intend to cause emotional 17 distress or recklessly disregard the near certainty that such distress will result from his 18 conduct. Johnson v. McDonald, 3 P.3d 1075, 1080 (Ariz. Ct. App. 1999). Indeed, even 19 unjustifiable conduct does not rise to the level necessary of “atrocious” and “beyond all 20 possible bounds of decency” to establish an intentional infliction of emotional distress 21 claim. Nelson v. Phoenix Resort Corp., 888 P.2d 1375, 1386 (Ariz. Ct. App. 1994). This 22 standard distinguishes “true claims from false ones, and . . . the trifling insult or annoyance 23 from the serious wrong.” Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781 , 785 24 (Ariz. 1989) (internal quotation omitted). 25 Plaintiff’s Amended Complaint is predicated upon allegations that Defendants 26 colluded with his ex-wife and her family to prosecute Plaintiff for an assault that 27 Defendants knew or should have known he did not commit. Plaintiff alleges that 28 Defendants intentionally caused emotional distress by engaging in “extreme and 1 unnecessary conduct which was malicious, nefarious, and outrageously adverse” against 2 Plaintiff, which they knew to be “false, nefarious, and criminal.” (Doc. 1 at 15). However, 3 Plaintiff does not describe this “conduct” or identify who engaged in it. Aside from 4 conclusory allegations, Plaintiff does not set forth facts to support the existence of any 5 “extreme and outrageous” conduct by Defendants. Consequently, Plaintiff’s allegations in 6 the Amended Complaint fail to state a claim for relief based on intentional infliction of 7 emotional distress. 8 8. Abuse of Process (Count VIII) 9 Plaintiff claims Defendants “willfully used the judicial process in a wrongful 10 manner that . . . violated his federal rights by abuse of process.” (Doc. 1 at 15). Yet, 11 Plaintiff has failed to plead facts showing that Defendants used the legal process to 12 accomplish a goal other than for which it was created. Abuse of process is not simply 13 “commencing an action or causing process to issue without justification”; even litigation 14 motivated by ill intentions does not constitute abuse of process where “process is used only 15 to accomplish the result for which it was created.” Donahoe v. Arpaio, 869 F. Supp. 2d 16 1020, 1060 (D. Ariz. 2012), aff’d sub nom. Stapley v. Pestalozzi, 733 F.3d 804 (9th Cir. 17 2013). In order to prevail on an abuse of process claim, Plaintiff must prove that 18 Defendants “took an action that could not logically be explained without reference to the 19 defendant’s improper motives.” Id. Plaintiff “has not alleged that any specific judicial 20 process was employed for a purpose other than for what it was designed.” Lovejoy v. 21 Arpaio, 2010 WL 466010 , at *15 (D. Ariz. Feb. 10, 2010). Thus, Plaintiff has not stated a 22 claim for abuse of process 23 9. Bad Faith (Count IX) 24 Plaintiff’s bad faith claim is premised on “a professional duty and standard, both 25 incorporated by practicing principals of the city, Arizona Revised Statute [sic], and 26 department policy, to operate and work in good faith and be free of bias and outside 27 influences.” (Doc. 1 at 16). However, he has not identified a statute or explained how a 28 policy violation is actionable as a bad faith claim. Moreover, Plaintiff’s Amended 1 Complaint is devoid of facts or allegations to suggest that there was a contractual 2 relationship between Plaintiff and Defendants. See Fields v. Banner Health, 2005 WL 3 4806305, at *6 (D. Ariz. Mar. 24, 2005) (finding that a lack of a valid contract necessitates 4 the dismissal of a claim for breach of the duty of good faith and fair dealing). As such, 5 Plaintiff’s bad faith claim, as pled in the Amended Complaint, is not a viable cause of 6 action. 7 10. Defamation (Count X) 8 A claim for defamation in Arizona involving a non-public figure requires the 9 following: (1) a false statement concerning the plaintiff; (2) the statement was defamatory; 10 (3) the publication of the statement to a third party; and (4) the plaintiff was damaged as a 11 result of the statement. Morris v. Warner, 770 P.2d 359, 366 (Ariz. Ct. App. 1988). For a 12 defamation claim to succeed, the one who publishes the defamatory communication must 13 know that the statement is false and defamatory, act in reckless disregard, or act 14 negligently. Dube v. Likins, 167 P.3d 93, 104 (Ariz. Ct. App. 2007). Plaintiff alleges that 15 “Defendants, all of them, collectively and individually, knowingly made false statements 16 about this Plaintiff to others in return for certain gains or punitive measures to be levied 17 against this Plaintiff.” (Doc. 1 at 16). However, Plaintiff fail to identify a single false 18 statement. Without factual support, Plaintiff’s allegations are insufficient to support a 19 claim for defamation. Accordingly, Plaintiff’s defamation claim is dismissed. 20 11. Punitive and Miscellaneous Damages (Counts XI & XII) 21 Plaintiff alleges that he is entitled to punitive damages because “Defendant engaged 22 in a misconduct herein with conscious disregard for the legal right of Plaintiff and his 23 family.” (Doc. 1 at 17). Moreover, Plaintiff alleges that Defendants’ actions caused him 24 damages in excess of $120,000. (Id.) A request for damages is not an independent cause 25 of action, but rather, it is a remedy. Accel Am. Inc. v. Metro Int’l LLC, 2014 WL 11512605 , 26 at *5 (D. Ariz. Feb. 12, 2014). As such, there is nothing for the Court to dismiss at this 27 stage of the proceedings. Id. (declining to dismiss plainitff’s claim for punitive damages 28 on motion to dismiss because it is a remedy and not independent cause of action). 1 Moreover, Plaintiff’s request for relief contains a request for punitive damages and an 2 award of damages in excess of $1,500,000. (Doc. 1 at 18). Thus, the Court will strike 3 Counts Eleven and Twelve as they are not independent causes of action. 4 12. Violation of Due Process and Civil Rights (Count XIII) 5 Plaintiff alleges that the “Defendants [sic] activities, individually and collectively, 6 violated certain due process and safe guards entitled to this Plaintiff as well as Civil Rights 7 Actions.” (Doc. 1 at 18). However, Plaintiff does not distinguish this cause of action from 8 his other causes of action, including his Due Process claim in Count Four. Moreover, he 9 does not identify which “Civil Rights” Defendants violated. Accordingly, this claim 10 appears to be duplicative and will be dismissed. 11 III. Leave to Amend 12 “A pro se litigant must be given leave to amend his or her complaint unless it is 13 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 14 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). Plaintiff could cure 15 the defects of his claim by providing additional factual allegations that render the claims 16 alleged in the Amended Complaint plausible. The Court will dismiss the Amended 17 Complaint without prejudice and allow Plaintiff to file a Second Amended Complaint that 18 properly meets the factual sufficiency and plausibility standards required under Rule 19 12(b)(6), Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and Ashcroft v. Iqbal, 556 20 U.S. 662 , 678 (2009). 21 If Plaintiff chooses to file a Second Amended Complaint, he must identify which 22 Defendant is responsible for which wrongs to adequately put the individual Defendants on 23 notice of the claims against them. See McHenry v. Renne, 84 F.3d 1172, 1176, 1178 (9th 24 Cir.1996) (where complaint links plaintiffs’ fact allegations to specific defendants, it [must 25 also] inform defendants of the legal claims being asserted.”). The Second Amended 26 Complaint must set forth “who is being sued, for what relief, and on what theory, with 27 enough detail to guide discovery.” Id. at 1177 . Further, any amended complaint will serve 28 as the operative pleading in this case, so Plaintiff must include all of his legal theories and 1 the entire factual basis for those theories in the Second Amended Complaint. Finally, 2 Plaintiff shall not reassert any legal theories against the Peoria Police Department as it is a 3 non-jural entity and has been dismissed with prejudice. Defendants Miller and Minter have 4 not been properly served; therefore, Plaintiff must serve the Second Amended Complaint 5 on them in compliance with Rule 4. 6 Given the specific guidance on the Amended Complaint’s deficiencies, the Court is 7 not inclined to grant Plaintiff leave to file a third amended complaint if the Second 8 Amended Complaint is found to be deficient. See Ferdik v. Bonzelet, 963 F.2d 1258 , 1261 9 (9th Cir. 1992) (affirming dismissal with prejudice where district court had instructed pro 10 se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend); 11 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149 , 1160 (9th Cir. 1989) (“The district 12 court’s discretion to deny leave to amend is particularly broad where plaintiff has 13 previously amended the complaint.”). Accordingly, 14 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 4) is GRANTED. 15 IT IS FURTHER ORDERED that Defendant Peoria Police Department is 16 DISMISSED with prejudice. 17 IT IS FURTHER ORDERED that Plaintiff may file a Second Amended 18 Complaint on or before February 7, 2020. If Plaintiff does not file its Second Amended 19 Complaint on or before February 7, 2020, then the Clerk of Court will dismiss this case 20 without further notice and enter judgment accordingly. In accordance with District of 21 Arizona Local Rule Civil 15.1, an amended complaint must “indicate in what respect it 22 differs from the pleading which it amends, by bracketing or striking through the text to be 23 deleted and underlining the text to be added.” LRCiv. 15.1. 24 IT IS FURTHER ORDERED that Plaintiff must serve the Second Amended 25 Complaint in the manner provided for service of summons in Rule 4 on all unserved 26 Defendants, including Defendants Miller and Minter. Plaintiff may serve all previously27 served Defendant with the Second Amended Complaint in accordance to Rule 5. 28 … 1 IT IS FINALLY ORDERED that the Rule 16 Scheduling Conference set for 2|| January 31, 2020 at 10:00 am is VACATED. 3 Dated this 8th day of January, 2020. [4] 5 ip Gu □□ 6 norable'Diang/4. Hurmetewa [28] -16-