Woodall v. Phoenix, City of

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Nicholas Woodall, No. CV-21-00962-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 City of Phoenix, et al., 13 Defendants. [15] 16 Pending before the Court are Nicholas Woodall’s (“Plaintiff”) Motion for U.S. 17 Marshal Service (Doc. 24) and the City of Phoenix, Richard Sias, and Kody King’s 18 (“Defendants”) Motion to Dismiss Plaintiff’s Operative Complaint (Doc. 35). For the 19 reasons below, Plaintiff’s Motion is denied as moot, and Defendants’ Motion is granted. 20 BACKGROUND 21 Plaintiff brings this action alleging various violations under 42 U.S.C. §§ 1983 , 22 1985, and 1986. On October 30, 2020, Plaintiff had an encounter with the two individual 23 defendants, Officers Sias and King, who are police officers with the Phoenix Police 24 Department (“PPD”). (Doc. 35 at 3; Doc. 35-1 at 2.) According to the operative complaint, 25 (Doc. 18), PPD received a 911 call reporting a suspicious person near an FBI building. 26 (Doc. 18 at 6–7.) Officers Sias and King responded to the scene and encountered Plaintiff. 27 (Doc. 18 at 6–7.) The officers informed Plaintiff that he was not allowed to leave while 28 they investigated and asked him to provide identifying information. (Doc. 18 at 6.) After 1 the investigation was completed, Plaintiff was allowed to leave the scene. (Doc. 35-1 at 4; 2 Doc. 30 at 3.) Plaintiff now challenges the detention under the First, Fourth, Fifth, and 3 Fourteenth Amendments. 4 DISCUSSION 5 I. Motion for Marshall Service 6 Plaintiff’s Motion for U.S. Marshal Service is moot. Although Plaintiff originally 7 requested that the Marshals serve a summons on Officer Sias, (Doc. 24), Defendants’ 8 counsel later notified the Court that Officer Sias had waived service of a summons and 9 complaint. (Doc. 34.) Because Officer Sias has waived service, Plaintiff’s Motion is moot 10 and therefore denied. 11 II. Motion to Dismiss 12 Defendant moves to dismiss Plaintiff’s action pursuant to Rule 12(b)(6) of the 13 Federal Rules of Civil Procedure. (Doc. 35). To survive dismissal for failure to state a 14 claim, a complaint must contain more than “labels and conclusions” or a “formulaic 15 recitation of the elements of a cause of action”; it must contain factual allegations sufficient 16 to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 17 544, 555 (2007). While “a complaint need not contain detailed factual allegations . . . it 18 must plead ‘enough facts to state a claim to relief that is plausible on its face.’” Clemens 19 v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550 20 U.S. at 570). The plausibility standard “asks for more than a sheer possibility that a 21 defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent 22 with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility 23 of “entitlement to relief.”’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted) 24 (quoting Twombly, 550 U.S. at 555 ). Finally, because Plaintiff is a pro se litigant, the Court 25 must hold his pleadings “to less stringent standards than formal pleadings drafted by 26 lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). 27 A. Dismissal 28 Defendants argue that the operative complaint should be dismissed because it fails 1 to state a claim for which relief can be granted. (Doc. 35.) The Motion was filed on August 2 19, 2021. (Doc. 35.) Pursuant to the Court’s local rules, Plaintiff had fourteen days to file 3 a Response. LRCiv 7.2(c). Plaintiff did not do so. 4 Although the Court “construe[s] pleadings liberally in their favor, pro se litigants 5 are bound by the rules of procedure.” Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995). 6 According to the local rules, “if the unrepresented party or counsel does not serve and file 7 the required answering memoranda, . . . such non-compliance may be deemed a consent to 8 the denial or granting of the motion[,] and the Court may dispose of the motion summarily.” 9 LRCiv 7.2(i). “Before dismissing the action, the district court is required to weigh several 10 factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 11 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 12 favoring disposition of cases of their merits; and (5) the availability of less drastic 13 sanctions.’” Ghazali, 46 F.3d at 53 (quoting Henderson v. Duncan, 779 F.2d 1421 , 1423 14 (9th Cir. 1986)). 15 Factors 1 and 2 clearly weigh in favor of dismissal; the instant Motion has been 16 pending for over four months, and Plaintiff has never filed a Response or a Motion to 17 Extend the filing deadline. Factor 3 also weighs in favor of dismissal; prior to the instant 18 motion, Plaintiff attempted to file two amended complaints in violation of the Court’s 19 procedural rules. (See, e.g., Docs. 22, 30, 32; see also Doc. 29). The Court also granted 20 two extensions of time for Plaintiff to file a proper Motion to Amend and proposed Third 21 Amended Complaint. (Docs. 29, 31.) Plaintiff failed to do so. Plaintiff’s failure to follow 22 the Court’s procedural rules resulted in a nearly two-month delay in the filing and deciding 23 of the instant Motion to Dismiss, and it has now been over a year since the incident in 24 question. It would be prejudicial to allow Plaintiff to continue to drag out the litigation by 25 his noncompliance after being repeatedly warned that he must adhere to the Court’s 26 procedural rules, which he continues to disregard. [28] 1 Factor 4 clearly weighs against dismissal because there is a public policy in favor 2 of deciding cases on the merits. Factor 5, however, weighs for dismissal. As previously 3 noted, Plaintiff has made multiple frivolous filings despite warnings from the Court. 4 Moreover, Plaintiff knew of the alleged deficiencies in his various Complaints, (Docs. 1-3, 5 7, 18), because defense counsel “conferred with Plaintiff regarding the deficiencies in his 6 numerous complaints on multiple occasions.” (Doc. 35 at 18.) The Court does not believe, 7 given Plaintiff’s history of failing to comply with procedural rules, that less severe 8 sanctions would be effective. Because four out of five factors weigh in favor of dismissal, 9 Defendants’ Motion is granted. See Bonn v. Cap. One, N.A., No. CV-12-00617-PHX10 GMS, 2012 WL 13024087 , at *3 (D. Ariz. Oct. 12, 2012). 11 B. Dismissal With or Without Prejudice 12 Defendants request dismissal with prejudice. (Doc. 35 at 16.) Leave to amend must 13 be granted unless it is clear that the complaint’s deficiencies cannot be cured by 14 amendment. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). When amendment 15 would be futile, however, dismissal may be ordered with prejudice. Dumas v. Kipp, 90 16 F.3d 386, 393 (9th Cir. 1996). 17 At this preliminary stage, it is unclear whether Plaintiff’s claims can be cured by 18 amendment. Therefore, the Second Amended Complaint is dismissed without prejudice. 19 CONCLUSION 20 Because Plaintiff failed to respond to Defendants’ Motion to Dismiss, the Court will 21 construe his failure to respond as consent to the granting of the Motion. 22 IT IS THEREFORE ORDERED that Plaintiff’s Motion for U.S. Marshal Service 23 (Doc. 24) is DENIED as moot. 24 IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Plaintiff’s 25 Operative Complaint (Doc. 35) is GRANTED. Plaintiff’s action is dismissed without 26 prejudice. 27 / / / [28] 1 IT IS FURTHER ORDERED that the Clerk of the Court is directed to update the caption on the docket to reflect the caption in this Order. 3 Dated this 12th day of January, 2022. Wars ) 5 A Whacrsay Sooo) 6 Chief United States District Judge [28] _5-