Mohiuddin v. Stern

1 WO [3] 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE DISTRICT OF ARIZONA [6] 7 Mehmood Mohiuddin, No. CV-22-00038-PHX-DGC 8 Plaintiff, ORDER 9 v. 10 Richard Joel Stern, individually and as City Attorney of the City of Apache Junction; the 11 City of Apache Junction; James Johnson; Bambi Johnson; John Insalaco; and Susan 12 Insalaco, 13 Defendants. [15] 16 Plaintiff Mehmood Mohiuddin brings this action pursuant to 42 U.S.C. § 1983 and 17 Arizona state law. Docs. 1, 10. Defendants Richard Stern and the City of Apache Junction 18 move for summary judgment.1 Doc. 88. The motion is fully briefed and no party requests 19 oral argument. For reasons stated below, the Court will grant Defendants’ motion. 20 I. Background. 21 Plaintiff owns The Hitching Post Saloon in Apache Junction, Arizona. Doc. 95 ¶ 1. 22 Plaintiff lives in Pinal County and is Pakistani-American. Doc. 10 ¶¶ 1, 8. In 2018, The 23 Hitching Post hosted events in an outdoor bull riding arena on Thursday and Saturday 24 evenings. Doc. 95 ¶¶ 5-6. Neighbors filed noise complaints about the events with the 25 Apache Junction Police Department. Id. ¶¶ 2, 11-14 . 26 Defendant Stern is the City Attorney for Apache Junction. Doc. 10 ¶ 2. He 27 investigated the complaints and, upon learning his office had a conflict of interest, referred 28 1 Plaintiff’s claims against Defendants Johnson and Insalaco and their spouses were previously dismissed with prejudice. See Docs. 39, 50. 1 the investigation to the Pinal County Attorney’s Office. Doc. 95 ¶ 3; see also Doc. 89-4 2 at 2. The County Attorney’s Office conducted an investigation and decided to charge 3 Plaintiff with criminal nuisance. Doc. 95 ¶¶ 7-10. 4 In May 2020, Plaintiff was convicted in the Apache Junction Justice Court. Id. ¶¶ 5 18-19; see also Doc. 89-3 at 2-5. Plaintiff appealed and the Pinal County Superior Court 6 reversed the conviction. Id. ¶¶ 20-21 . 7 Plaintiff then filed this suit for malicious prosecution. See Doc. 10; Doc. 95-1 at 8 73-78. Plaintiff alleges that Defendants’ investigation and referral to the Pinal County 9 Attorney was driven “by racial animosity toward” Plaintiff and “by a desire to force 10 [Plaintiff] to close” The Hitching Post. Doc. 10 ¶ 24. Plaintiff seeks attorney’s fees 11 associated with his criminal case and unspecified damages, including for medical bills and 12 pain and suffering. Id. at ¶¶ 38, 43 . 13 II. Legal Standard. 14 Summary judgment is appropriate if the moving party shows that there is no genuine 15 dispute as to any material fact and that it is entitled to judgment as a matter of law. Fed. 16 R. Civ. P. 56(a). The moving party “bears the initial responsibility of informing the court 17 of the basis for its motion, and identifying those portions of [the record] which it believes 18 demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 19 U.S. 317 , 323 (1986). Summary judgment is warranted “against a party who fails to make 20 a showing sufficient to establish the existence of an element essential to that party’s case, 21 and on which that party will bear the burden of proof at trial.” Id. at 317 . Only disputes 22 over facts that might affect the outcome of the suit will preclude the entry of summary 23 judgment – the disputed evidence must be “such that a reasonable jury could return a 24 verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 25 (1986). The Court must view the evidence in the light most favorable to the nonmoving 26 party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and 27 draw justifiable inferences in that party’s favor, Anderson, 477 U.S. at 255 . 28 / / / 1 III. Discussion. 2 Plaintiff asserts a claim for malicious prosecution against Defendant Stern under 42 3 U.S.C. § 1983 , and the same claim against all Defendants under Arizona law. Doc. 1-3 at 4 6-7. The Court looks to Arizona law for the elements of both the state and federal claims. 5 Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). In Arizona, “[t]he 6 essential elements of malicious prosecution are (1) a criminal prosecution, (2) that 7 terminates in favor of plaintiff, (3) with defendants as prosecutors, (4) actuated by malice, 8 (5) without probable cause, and (6) causing damages.” Slade v. City of Phoenix, 541 P.2d 9 550, 552 (Ariz. 1975); Bearup v. Bearup, 596 P.2d 35, 36 (Ariz. Ct. App. 1979). 10 “A criminal defendant may maintain a malicious prosecution claim not only against 11 prosecutors but also against others – including police officers and investigators – who 12 wrongfully caused his prosecution.” Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011) 13 (citing Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 , 1126 (9th Cir. 2002)); Awabdy, [14] 368 F.3d at 1066 (“Malicious prosecution actions are not limited to suits against 15 prosecutors but may be brought, as here, against other persons who have wrongfully caused 16 the charges to be filed.”). 17 Defendants Stern and the City are entitled to summary judgment for two reasons. 18 First, Plaintiff was prosecuted by the Pinal County Attorney’s Office, not Defendants, and 19 Plaintiff produces no evidence that Defendants influenced or caused the prosecution. 20 Second, the absence of probable cause is an element of malicious prosecution, and Plaintiff 21 presents no evidence of such an absence in this case. 22 A. Prosecutorial Independence. 23 In federal cases, a presumption of prosecutorial independence assumes that the 24 County made an independent decision to prosecute Plaintiff and that Defendants Stern and 25 the City therefore are not liable for malicious prosecution. See Poppell v. City of San 26 Diego, 149 F.3d 951, 962 (9th Cir. 1998). The presumption is rebutted when local officials 27 “improperly exerted pressure on the prosecutor, knowingly provided misinformation to 28 him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith 1 conduct . . . instrumental in causing the initiation of legal proceedings.” Awabdy, 368 F.3d 2 at 1067 ; see also Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th Cir. 2007) (“This 3 presumption may be rebutted by showing, for example, that the prosecutor was pressured 4 or caused by the investigating officers to act contrary to his independent judgment or that 5 the investigating officers presented the prosecutor with information known by them to be 6 false.”) (cleaned up). If the presumption is not rebutted, local officials are not liable. 7 Poppell, 149 F.3d at 962 . 8 Similarly, under Arizona law, a local official is not liable “where a prosecuting 9 attorney is left to judge the propriety of proceeding with the charge and acts on his own 10 initiative in doing so.” Walsh v. Eberlein, 560 P.2d 1249, 1252 (Ariz. Ct. App. 1976); see 11 also Fields v. McQueen, No. CV 16-02863-PHX-GMS-MHB, 2019 WL 9463814 , at *5 12 (D. Ariz. Dec. 3, 2019) (“The law in Arizona is clear that ‘a malicious prosecution claim 13 will not lie where a prosecuting attorney is left to judge the propriety of proceeding with 14 the charge and acts on his own initiative in doing so.’”) (quoting Walsh, 560 P.2d at 1252 ); 15 Cameron v. Gila Cnty., No. CV11-80-PHX-JAT, 2011 WL 2115657 , at *5 (D. Ariz. May 16 26, 2011) (same); Medrano v. City of Phoenix, No. 1 CA-CV-13-0484, 2014 WL 5494931 , 17 at *4 (Ariz. App. Ct. 2014) (“In assessing whether a malicious prosecution claim is 18 properly alleged, a person is a ‘prosecutor’ if he or she initiated the criminal prosecution 19 without probable cause . . . or continued proceedings without probable cause.”). 20 It is undisputed that the City received noise complaints about Plaintiff’s business, 21 raising the possibility that Arizona’s public nuisance law, A.R.S. § 13-2917, was being 22 violated. Defendant Stern started the City’s investigation, but ultimately referred it to the 23 Pinal County Attorney when Stern concluded that his office had a conflict of interest 24 arising from other pending litigation between Plaintiff and the City. Doc. 89-4 at 2; 25 Doc. 95-1 at 66. After the referral, the County Attorney’s Office made the decision to 26 prosecute Plaintiff. Plaintiff bears the burden of showing that Defendants influenced the 27 County’s decision. Awabdy, 368 F.3d at 1067 . [28] 1 Plaintiff argues that Defendant Stern engaged in wrongful conduct by “forwarding 2 the matter to the county to ensure” Plaintiff’s prosecution “out of personal and racial 3 animosity.” Doc. 94 at 3-4. Plaintiff cites deposition testimony “support[ing] his long4 held belief that Stern harbors personal animosity toward him.” Id. But Plaintiff presents 5 no evidence that Defendant Stern pressured, directed, or influenced the County Attorney’s 6 Office to prosecute Plaintiff or to act contrary to its own independent judgment. See 7 Blankenhorn, 485 F.3d at 482 ; Bressi v. Ford, 575 F.3d 891, 899 (9th Cir. 2009). Nor does 8 Plaintiff present evidence that Defendant Stern presented information he knew to be false 9 to the County Attorney’s Office. See Blankenhorn, 485 F.3d at 482 . 10 Upon arriving at the County Attorney’s Office, the matter was assigned to Justice 11 Court Bureau Chief Thomas McDermott. Doc. 89-2 at 6, 18; Doc. 95-1 at 66. McDermott 12 testified that any charging decision was solely within the discretion of the Pinal County 13 Attorney’s Office, and that he made the decision to prosecute Plaintiff. Doc. 89-2 at 2014 22. When asked whether Defendant Stern had “any involvement in your charging 15 decision,” McDermott testified “Absolutely not.” Id. at 21. When asked whether Stern or 16 the City “in any way influence[d] your decision to charge or prosecute [Plaintiff],” 17 McDermott again responded “Absolutely not.” Id. When asked whether he had “any 18 recollection of Mr. Stern trying to influence your prosecution,” he testified “None 19 whatsoever.” Id. at 33 (emphasis added). With respect to finding probable cause to 20 proceed with the prosecution, McDermott testified that “no one else was involved in the 21 decision but myself,” and that he found “ample probable cause for numerous violations” 22 of the state public nuisance statute. Id. at 22, 24. 23 The Pinal County Attorney, Kent Volkmer, reported back to the City after receiving 24 the referral: [25] Upon receipt and thorough review of all relevant police reports and evidence, 26 this office independently chose to draft and file a Complaint on November 8, 2018, against Mehmood Mohiuddin . . . . In all, after reviewing the potential 27 of dozens of allegations, it was this office’s position that probable cause 28 existed to file 15 distinct public nuisance violations spanning April to June 2018. 1 Doc. 89-5 at 2. 2 Plaintiff presents nothing to show that Stern or the City influenced the assessment 3 of probable cause or the charging decision. Plaintiff does present evidence that Defendant 4 Stern expressed racially derogatory views about Plaintiff, but he presents no evidence that 5 those views were ever shared with the County or had any influence on McDermott’s 6 decision to prosecute. In fact, McDermott testified that he never heard Stern “make any 7 racially disparaging remarks about [Plaintiff].” Doc. 89-2 at 33. 8 Summary judgment is warranted “against a party who fails to make a showing 9 sufficient to establish the existence of an element essential to that party’s case, and on 10 which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 317 . Because 11 Plaintiff presents no evidence that Defendants influenced the County’s decision to 12 prosecute Plaintiff, they are not liable for malicious prosecution and summary judge must 13 be entered in their favor. 14 B. Probable Cause. 15 Plaintiff must also prove that he was prosecuted “without probable cause.” Slade, [16] 541 P.2d at 552 . “The law is well settled that the existence of probable cause is a complete 17 defense to claims of . . . malicious prosecution.” Hockett v. City of Tucson, 678 P.2d 502 , 18 505 (Ariz. Ct. App. 1983)); Lassitter v. City of Bremerton, 556 F.3d 1049, 1054-55 (9th 19 Cir. 2009) (“[P]robable cause is an absolute defense to malicious prosecution.”). 20 Probable cause is defined as “a reasonable ground of suspicion, supported by 21 circumstances sufficient to warrant an ordinarily prudent man in believing the accused is 22 guilty of the offense.” Gonzales v. City of Phoenix, 52 P.3d 184, 187 (Ariz. 2002). 23 “Whether a given state of facts constitutes probable cause is always a question of law to be 24 determined by the court.” Slade, 541 P.2d at 553 ; see also Hopkins v. Bonvicino, 573 F.3d 25 752, 762 (9th Cir. 2009). 26 Plaintiff makes two arguments in support of his claim that the prosecution lacked 27 probable cause. [28] 1 First, Plaintiff contends that the superior court’s reversal of his conviction 2 establishes a lack of probable cause. Id. at 8-9. The Court does not agree. The superior 3 court provided this explanation for its decision: [4] [U]pon independent grounds, the Court FINDS that there is not substantial 5 evidence as to the specific culpability of this Defendant on the dates in question, such that no rational trier of fact, applying the correct law on 6 liability and observing the legal distinction between an[] enterprise and an 7 individual, could have found liability of this Defendant for each offense beyond a reasonable doubt, as required by A.R.S. § 13-2917(A)(l). [8] 9 Doc. 89-9 at 5 (emphasis added). 10 Plaintiff conflates the County’s burden of proof at trial with the requirement of 11 probable cause. They are not the same. The County was required to prove Plaintiff’s guilt 12 at trial beyond a reasonable doubt. Probable cause requires far less, not even rising to a 13 preponderance of the evidence. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 14 2006) (en banc) (“[P]robable cause means ‘fair probability,’ not certainty or even a 15 preponderance of the evidence.”). It “requires only a probability or substantial chance of 16 criminal activity, not an actual showing of such activity.” Illinois v. Gates, 462 U.S. 213 , 17 243 n.13 (1983); Merritt v. Arizona, 425 F. Supp. 3d 1201 , 1210 (D. Ariz. 2019). Thus, 18 the fact that Plaintiff’s conviction was overturned on appeal for lack of proof beyond a 19 reasonable doubt says nothing about whether it was brought with probable cause. 20 Second, Plaintiff argues that the relevant probable cause inquiry asks “whether there 21 was evidence that there had been a violation of the law.” Doc. 94 at 8. Plaintiff asserts 22 that Defendants lacked probable cause to believe Plaintiff’s actions interfered with “the 23 comfortable enjoyment of life or property . . . by a considerable number of persons” as 24 required by the relevant public nuisance statute. Id. (citing A.R.S. § 13-2917(A)(1); 25 emphasis added). 26 The superior court reversed Plaintiff’s conviction on this issue, finding that the 27 County failed to prove that Plaintiff’s actions adversely affected a “considerable number 28 of persons.” Doc. 89-9 at 3. This appears to have been an issue of first impression, as the 1 superior court cited no case law on the issue of how many people are required for a 2 “considerable number.” Id. Plaintiff likewise cites no such case law, and the Court has 3 found none. 4 Plaintiff does not dispute that eight neighbors complained about noise from his 5 business and presented evidence at trial. Doc. 89-3 at 2. The superior court found “clear 6 evidence that the Hitching Post was affecting some neighbors.” Id. at 4. “Witnesses 7 testified to their reactions due to the noise, such as having to close doors and windows and 8 turn up the volume on their TV’s to drown out the noise, having their sleep affected, being 9 irritated by the noise, and replacing windows with double-paned windows in attempts to 10 dampen the sound.” Id. Given these facts, the Court cannot conclude that the prosecution 11 lacked probable cause because it should have foreseen the appellate conclusion that eight 12 neighbors is not a “considerable number.” As noted above, “probable cause means ‘fair 13 probability,’ not certainty or even a preponderance of the evidence.” Gourde, 440 F.3d at 14 1069; see also Gates, 462 U.S. at 243 n.13. Complaints from eight neighbors that 15 Plaintiff’s business adversely affected them was sufficient to create a “fair probability” that 16 the public nuisance statute had been violated. Given the lack of Arizona authority holding 17 that some specific number of persons was needed to constitute a “considerable” number, 18 the Court cannot find that probable cause was lacking. 19 Because the absence of probable cause is an essential element of Plaintiff’s case and 20 he has presented no evidence to establish that element, the Court will grant summary 21 judgment on this basis as well. See Lassiter v. City of Bremerton, 556 F.3d 1049 , 1054 22 (9th Cir. 2009) (“[P]robable cause supported Smith’s arrest for arson. For the same reason, 23 probable cause supported Smith’s prosecution. Thus, the district court correctly granted 24 summary judgment for Sergeant Almada on Smith’s malicious prosecution claim.”); 25 Cullison v. City of Peoria, 584 P.2d 1156, 1161 (Ariz. 1978) (affirming summary judgment 26 on a malicious prosecution claim where there was no showing of a lack of probable cause); 27 see also Browder v. Cnty. of San Bernardino, No. ED-CV-192306-JGB-SPX, 2022 WL 28 3365085, at *11 (C.D. Cal. Aug. 12, 2022) (“Because probable cause is an absolute defense 2|| to malicious prosecution, the malicious-prosecution claim fails[.]’”) (cleaned up).” 3 IT IS ORDERED that Defendants’ motion for summary judgment (Doc. 88) is 4|| granted. The Clerk’s Office is directed to enter judgment accordingly and terminate this || action. 6 Dated this Ist day of June, 2023. [7] » 46. Courphtl Ate . 9 = David G. Campbell 10 Senior United States District Judge [25] ° The Court grants summary judgment for Stern and the City based on the foregoing 26 analysis, but notes that summary judgment in favor of Defendant Stern alone would be enough to grant summary judgment in favor the City as well. Plaintiffs claim against the 27 City is based on vicarious lia ility (Doc. 42), which necessarily depends on finding liability on the part of Defendant Stern. See Mulligan v. Grace, 666 P.2d 1092, 1094 (Ariz. 28 Ct. App. 1983). -9-