Hart v. Granado

1 SM 2 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 David LaDon Hart, No. CV-22-02067-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER [12] Joshua Granado, et al., [13] Defendants. [14] 15 Plaintiff David LaDon Hart brought this pro se civil rights action pursuant to federal 16 and state law and paid the filing fee. (Doc. 1.) Plaintiff sues Defendants United States of 17 America, Joshua Granado, Tyler Whitt, Alan Barone, Phoenix Veterans Police 18 Department, Gilbert Police Department, Wendy Shea, Joshua Fister, and Richard Kennedy. 19 Before the Court is Gilbert Police Department’s Motion to Dismiss. (Doc. 55.) Plaintiff 20 was informed of his right and obligation to respond to the Motion (Doc. 56), but he did not 21 file a response. 22 I. Second Amended Complaint 23 In his Second Amended Complaint, Plaintiff alleges that: 24 On December 7th 2021, Defendant Joshua Granado, wrote a police report and attached the Plaintiff’s name to said report, [25] without the Plaintiff’s knowledge and without actually 26 interviewing the Plaintiff. However, per the Defendant’s statement [of] facts dated, 12/7/2023, he stated that he did not [27] need to interview the Plaintiff and thus, did not conduct an 28 interview because, he felt it was unnecessary. The Defendant, with the assistance of and under the direction of Defendants[] Shea, Dewerth, Whitt, Barone, Fister, Kennedy, and Bowen. [1] Moreover, the Defendants conspired to fabricate charges 2 against the Plaintiff in order to cover up an unlawful arrest. Then, in April of 2022, Defendant Granado[] filed another [3] fictitious police report. Wherein, he forged the Plaintiffs’ [sic] 4 name on said report. Furthermore, the Defendants withheld evidence, i.e., the forged statement from Plaintiff and his [5] attorneys, disallowing him the opportunity to defend himself 6 in civil court. 7 (Doc. 23 at 5.) Plaintiff brings several claims against Defendants including false statements 8 under 18 U.S.C. § 1001 , deprivation of rights under 18 U.S.C. § 242 , false arrest and 9 imprisonment in violation of the Fourth Amendment under 42 U.S.C. § 1983 , tampering 10 with evidence under Arizona Revised Statutes § 13-2809, and conspiracy under 18 U.S.C. 11 § 241. (Id. at 4.) Plaintiff seeks special damages, punitive damages, costs, a formal letter 12 of apology from Defendants, and any other damages allowed by law. (Id. at 5−6.) 13 II. Motion to Dismiss Legal Standard 14 Dismissal of a complaint, or any claim within it, for failure to state a claim under 15 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 16 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 17 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 , 1121–22 (9th Cir. 2008) (quoting 18 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). In determining 19 whether a complaint states a claim under this standard, the allegations in the complaint are 20 taken as true and the pleadings are construed in the light most favorable to the nonmovant. 21 Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). 22 A pleading must contain “a short and plain statement of the claim showing that the 23 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But “[s]pecific facts are not 24 necessary; the statement need only give the defendant fair notice of what . . . the claim is 25 and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal 26 quotation omitted). 27 To survive a motion to dismiss, a complaint must state a claim that is “plausible on 28 its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see Bell Atlantic Corp. v. Twombly, [1] 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 2 content that allows the court to draw the reasonable inference that the defendant is liable 3 for the misconduct alleged.” Iqbal, 556 U.S. at 678 . 4 III. Discussion 5 Defendant Gilbert Police Department argues that it should be dismissed from the 6 action because it is a non-jural entity and because Plaintiff’s claims against it fail as a 7 matter of law. (Doc. 55.) Plaintiff did not respond to the Motion to Dismiss. 8 Police departments are subparts of municipalities and are not separate entities for 9 purposes of suit. See Gotbaum v. City of Phoenix, 617 F. Supp. 2d 878, 886 (D. Ariz. 10 2008). Courts have likewise held that police departments are non-jural entities and lack 11 the capacity to be sued for state law claims. See Braillard v. Maricopa Cnty., 232 P.3d 12 1263, 1269 (Ariz. Ct. App. 2010); see also Medrano v. City of Phoenix, No. 1 CA-CV 1313 0484, 2014 WL 5494931 , at *1 n.4 (Ariz. Ct. App. Oct. 30, 2014) (“[b]ecause it is a non14 jural entity that cannot be sued, the Phoenix Police Department was dismissed as a putative 15 party”). Accordingly, the Gilbert Police Department is not a proper Defendant under § 16 1983 or state law and must be dismissed as to Plaintiff’s § 1983 claim and his state law 17 claim § 13-2809.1 18 To the extent Plaintiff seeks relief under 18 U.S.C. §§ 241 , 242, and 1001, “[t]hese 19 criminal provisions provide no basis for civil liability.” Aldabe v. Aldabe, 616 F.2d 1089 , 20 1092 (9th Cir. 1980) (sections 241 and 242 do not provide a basis for civil liability); Black 21 v. Young, 685 F. App’x 514, 515 (9th Cir. 2017) (same); see also Henry v. Bartlett-Tucker, 22 No. CV-23-00142-TUC-RCC, 2023 WL 2787762 , at *2 (D. Ariz. Apr. 5, 2023) (“As a 23 private party, Plaintiff cannot bring a civil lawsuit alleging violations of federal criminal 24 statutes.”); Daniels v. BMF VAZ Saddle, LLC, No. CV-23-00070-TUC-CKJ (EJM), 2023 25 WL 3585248 , at *5 (D. Ariz. May 22, 2023) (“As an initial matter, Title 18 contains 26 criminal statutes and is irrelevant to a private, civil action.”), report and recommendation 27 adopted sub nom. Daniels v. BMF V AZ Saddle, LLC, No. CV-23-00070-TUC-CKJ (EJM), [28] 1 The Court will not address the merits of these claims at this time. 1| 2023 WL 3994915 (D. Ariz. June 14, 2023); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007) (upholding dismissal of plaintiff’s claims alleging violations 3 of 18 U.S.C. 1001, among others, on grounds that criminal statutes do not provide private 4 right of action and are not enforceable through a civil action); AirTrans, Inc. v. Mead, 389 F.3d 594 , 598 N.1 (6th Cir. 2004) (finding no private cause of action for violation of 18 6| U.S.C. § 1001); Ng v. HSBC Mortg. Corp., No. 07-CV-5434, 2010 WL 889256 at *9 7| (E.D.N.Y. Mar. 10, 2010) (collecting cases stating no private cause of action created 8 | under 18 U.S.C. § 1001 ). Accordingly, Plaintiffs claims under 18 U.S.C. §§ 241 , 242, and 1001 must be dismissed with prejudice. 10| ITIS ORDERED: 11 (1) The reference to the Magistrate Judge is withdrawn as to Defendant Gilbert 12 | Police Department’s Motion to Dismiss (Doc. 55), and the Motion is granted. 13 (2) Defendant Gilbert Police Department is dismissed with prejudice. 14 (3) Plaintiffs claims under 18 U.S.C. §§ 241 , 242, and 1001 are dismissed with 15 | prejudice. 16 Dated this 6th day of November, 2023. [17] 18 i C [19] 0 _ James A. Teil Org Senior United States District Judge