Andrich v. Adel

• Court: District Court, D. Arizona
• Decided: March 16, 2021
• Docket: 2:20-cv-01237
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Devin Andrich, No. CV-20-01237-PHX-GMS (MTM)

10 Plaintiff, ORDER

11 v.

12 Allister Adel, et al.,

13 Defendants. 14 15 16 Before the Court are Defendants State Bar of Arizona and Stacy Lynn Shuman’s 17 (“SBA Defendants”) Request for Judicial Notice (Doc. 42) and Motion to Dismiss 18 Plaintiff’s First Amended Complaint (Doc. 43).1 Also before the Court is Maricopa County 19 Defendants’ Motion to Dismiss the Second Amended Complaint. (Doc. 66.) For the 20 reasons set forth below, Defendants’ motions are granted, and SBA Defendants’ Motion 21 for Judicial Notice is denied as moot.2 22 BACKGROUND 23 Although Plaintiff alleges many irrelevant facts in his complaint, this case is 24 premised on an allegedly deficient investigation by the State Bar of Arizona (“SBA”) and

25 1 The parties stipulated that the SBA Defendants’ Motion to Dismiss the First Amended Complaint would be construed as a motion to dismiss the Second Amended Complaint. 26 (Doc. 59); (Doc. 60).

27 2 The Defendants’ request for oral argument is denied because the parties have had an adequate opportunity to discuss the law and evidence and oral argument will not aid the 28 Court’s decision. See Lake at Las Vegas Invrs. Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991). 1 Maricopa County law enforcement and prosecutors. Plaintiff Devin Andrich (“Plaintiff”) 2 is a disbarred attorney. He alleges that his former clients, Jerome and Lisa Meyers 3 (“Meyers”), agreed to store his personal property during the pendency of criminal 4 proceedings against him. The Meyers later filed a bar complaint against Plaintiff, and 5 Plaintiff alleges that they refused to relinquish possession of his property, including his 6 computer containing client files. When they did release the computer, Plaintiff alleges the 7 Meyers had confiscated the hard drive containing his data. Plaintiff asserts that the Meyers’ 8 attorneys at Singer Pistiner, P.C. either possess the files or know of their location. 9 Plaintiff sues three entities, Maricopa County, the State of Arizona, and the State 10 Bar of Arizona, and nine individuals including law enforcement officers or investigators 11 and others. These Defendants include: Allister Adel, Mark Brnovich, Jeffrey Duvendack, 12 Michael Gingold, Kristin Nordeen, Heather Kirka, Jose Garcia, David Beck, and Stacy 13 Lynn Shuman. He also includes allegations against Robert Singer, counsel at Singer 14 Pistiner, P.C., and husband of Deputy Maricopa County Attorney Heather Kirka. Plaintiff 15 sues Defendant Kirka because she “made it seem as if [she] was acting in an official 16 capacity on behalf of Defendant Maricopa County when assisting Meyers, Singer and 17 Pistiner with concealing the whereabouts of Plaintiff’s attorney-client files.” (Doc. 64 at 18 7.) Plaintiff further specifies that Defendants SBA and Shuman are sued “only in the 19 capacity of investigators retained by Maricopa County. . . and not [as] prosecutors in any 20 disciplinary proceeding.” Id. He likewise sues Gingold, Duvendack, Nordeen, Garcia, and 21 Beck as “agents or employees [sic] Maricopa County . . . at the time of events complained 22 herein.” Id. And he further sues the Maricopa County Attorney Allister Adel, and the 23 Arizona Attorney General Mark Brnovich as “causing the deprivation of Plaintiff’s rights 24 under 42 U.S.C. § 1983.” Id. at 6. 25 Plaintiff asserts that he notified both the SBA and Maricopa County law 26 enforcement and prosecutors of the alleged theft. He alleges that the Defendants are 27 allowing Singer Pistiner P.C. to remain in possession of his client files and have instructed 28 other state and county Defendants not to obtain search warrants for his property. Plaintiff 1 claims that, as a result, he was unable to respond to Meyers’ bar charge and was unable to 2 comply with the orders of the Disciplinary Judge which require him to return his clients’ 3 files to them. He further alleges he is obstructed in an unspecified way from fulfilling the 4 terms of his plea agreement and probation conditions. Plaintiff claims that, while he is not 5 attempting to call into question any of the state court proceedings against him through this 6 lawsuit, the alleged failures of the Defendants to investigate and prosecute others rendered 7 his Petition for Post-Conviction Relief incomplete and resulted in its ultimate denial. He 8 claims that the same failures from Defendants are frustrating his ability to file a “robust 9 petition for writ of habeas corpus.” (Doc. 64 at 2.) 10 DISCUSSION 11 I. Legal Standards 12 a. Rule 12(b)(1) 13 Federal Rule of Civil Procedure 12(b)(1) allows a party to move to dismiss a 14 complaint for lack of subject matter jurisdiction. “The party asserting jurisdiction has the 15 burden of proving all jurisdictional facts.” Indus. Tectonics, Inc. v. Aero Alloy, 912 F.2d 16 1090, 1092 (9th Cir. 1990) (citing McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 17 189 (1936)). Federal courts “possess only that power authorized by Constitution and 18 statute,” and therefore “[i]t is to be presumed that a cause lies outside this limited 19 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In 20 effect, the court presumes lack of jurisdiction until the plaintiff proves otherwise. See id. 21 b. Rule 12(b)(6) 22 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 23 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 24 elements of a cause of action”; it must contain factual allegations sufficient to “raise the 25 right of relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 26 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). When analyzing a complaint 27 for failure to state a claim, “allegations of material fact are taken as true and construed in 28 the light most favorable to the non-moving party.” Smith v. Jackson, 84 F.3d 1213, 1217 1 (9th Cir. 1996). However, legal conclusions couched as factual allegations are not given a 2 presumption of truthfulness, and “conclusory allegations of law and unwarranted 3 inferences are not sufficient to defeat a motion to dismiss.” Pareto v. F.D.I.C., 139 F.3d 4 696, 699 (9th Cir. 1998). 5 II. Analysis 6 a. Eleventh Amendment Immunity 7 i. Legal Standard 8 The Eleventh Amendment provides that “[t]he Judicial power of the United States 9 shall not be construed to extend to any suit in law or equity, commenced or prosecuted 10 against one of the United States by Citizens of another State, or by Citizens or Subjects of 11 any Foreign State.” U.S. Const. amend. XI. “The ultimate guarantee of the Eleventh 12 Amendment is that nonconsenting States may not be sued by private individuals in federal 13 court.” Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 777 (9th Cir. 14 2005) (quoting Bd. of Trs. of Univ. of Ala. v. Garret, 531 U.S. 356, 363 (2001)). 15 ii. The State of Arizona 16 First, Plaintiff may not seek damages against the State of Arizona and Defendants 17 employed by the State sued in their official capacities. The State is immune from suit under 18 the Eleventh Amendment. “[A] claim that state officials violated state law in carrying out 19 their official responsibilities is a claim against the State that is protected by the Eleventh 20 Amendment. . . . [T]his principle applies as well to state-law claims brought into federal 21 court under pendent jurisdiction.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 22 89, 121 (1984); see Jackson v. Arizona, 885 F.2d 639, 641 (9th Cir. 1989) (dismissing 23 prisoner’s § 1983 suit against the State of Arizona as legally frivolous), superseded by 24 statute on other grounds in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000); see also 25 In re Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999) (“Eleventh Amendment sovereign 26 immunity limits the jurisdiction of the federal courts and can be raised at any time during 27 judicial proceedings or by the court sua sponte.”). The State as a Defendant is, therefore, 28 dismissed. 1 iii. The State Bar of Arizona 2 “The Eleventh Amendment bars suits which seek either damages or injunctive relief 3 against a state, an ‘arm of the state,’ its instrumentalities, or its agencies.” Franceschi v. 4 Schwartz, 57 F.3d 828, 831 (9th Cir. 1995) (quoting Durning v. Citibank, N.A., 950 F.2d 5 1419, 1422–23 (9th Cir. 1991)). “To determine whether a governmental agency is an arm 6 of the state,” courts examine five factors: “whether a money judgment would be satisfied 7 out of state funds, whether the entity performs central governmental functions, whether the 8 entity may sue or be sued, whether the entity has the power to take property in its own 9 name or only the name of the state, and the corporate status of the entity.” Mitchell v. L.A. 10 Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988). “To determine these factors, the court 11 looks to the way state law treats the entity.” Id. 12 Here, the first factor, whether a money judgment would be satisfied out of state 13 funds, weighs slightly against finding the SBA an arm of the state. In accordance with 14 Arizona Supreme Court Rule 32(d), the SBA fixes and collects fees through its treasury. 15 Ariz. Sup. Ct. R. 32(d)(1). The SBA’s board is vested with the power to “[a]pprove budgets 16 and make appropriations and disbursements from funds of the State Bar to pay expenses 17 necessary for carrying out its functions.” Ariz. Sup. Ct. R. 32(d)(3). Nonetheless, the 18 Arizona Supreme Court retains oversight on the SBA’s expenditures—each year, a 19 statement of the SBA’s expenditures must be prepared and transmitted to the Chief Justice 20 of the Arizona Supreme Court. Ariz. Sup. Ct. R. 32(d)(7). 21 The second factor, whether the entity performs central government functions, 22 weighs heavily in favor of finding that the SBA is an arm of the state. The SBA was created 23 by the Arizona Supreme Court, pursuant to Arizona Supreme Court Rule 32(a), which 24 explains: “The Supreme Court of Arizona maintains under its direction and control a 25 corporate organization known as the State Bar of Arizona.” See Scheehle v. Justices of the 26 Sup. Ct. of the State of Ariz., 120 P.3d 1092, 1100 (Ariz. 2005) (“By virtue of our 27 constitutional power over attorneys as officers of the court, this Court created the State Bar 28 of Arizona.”). The Arizona Supreme Court thus defines the SBA’s duties, obligations, and 1 goals and every lawyer practicing in the State of Arizona must be a member of the SBA. 2 See Bates v. State Bar of Ariz., 433 U.S. 350, 361 (1977) (“Although the State Bar plays a 3 part in the enforcement of the rules, its role is completely defined by the court; the appellee 4 acts as the agent of the court under its continuous supervision.”). 5 The parties do not brief the remaining Mitchell factors, but this Court has recently 6 considered them as applied to the SBA in another matter: 7 [Plaintiff] argues the third factor cuts in his favor because the SBA “may sue 8 and be sued.” (Doc. 23 at 12-13.) But this argument is based on an earlier version of Rule 32. Before 2017, Rule 32 included a provision allowing the 9 SBA to sue and be sued. 2015 Ariz. Sup. Ct. R. 32(a). An amendment, 10 effective January 1, 2017, removed that language. 2016 Ariz. Sup. Ct. R. 32. Additionally, under Arizona law, a state agency is “not liable for acts and 11 omissions of its employees constituting ... [t]he exercise of an administrative function involving the determination of fundamental governmental policy, 12 and “[t]he determination of a fundamental governmental policy ... include[s] 13 ... [t]he licensing and regulation of any profession or occupation.” A.R.S. § 12-820.01(A)(2), (B)(3). Thus, the third factor cuts in favor of classifying 14 the SBA as an arm of the state. 15 The fourth factor (“whether the entity has the power to take property in its 16 own name or only in the name of the state”) also weighs in favor of such a 17 classification. [Plaintiff] argues the SBA “may enter into contracts and acquire, hold, encumber, dispose of and deal in and with real and personal 18 property.” (Doc. 23 at 12-13.) But again, [Plaintiff] bases this argument on a 19 now-obsolete version of Rule 32. The January 2017 amendment removed this language. 20

21 The fifth factor (“the corporate status of the entity”) weighs against a finding that the SBA is an arm of the state because the SBA is a corporation. Ariz. 22 Sup. Ct. R. 32(a) (“The Supreme Court of Arizona maintains under its 23 direction and control a corporate organization known as the [SBA].”). Fitzhugh v. Miller, No. CV-19-04632-PHX-DWL, 2020 WL 1640495, at *6 (D. Ariz. Apr. 24 2, 2020). 25 Ultimately, although the SBA has independent features, it is most properly 26 understood as an arm of the state. Indeed, on balance, the State treats the SBA as an arm 27 by retaining a significant degree of control over the organization. See id. This conclusion 28 1 is consistent with the findings of other courts in the State and the Ninth Circuit. See, e.g., 2 Breck v. Doyle, 2019 WL 6048847, at *2 (9th Cir. 2019) (“Eleventh Amendment immunity 3 extends beyond the state itself. . . . We have previously recognized that both the Nevada 4 Supreme Court and the [State Bar of Nevada] are arms of the State of Nevada, and so are 5 immune from § 1983 damages claims.”); Hirsh v. Justices of the Sup. Ct. of the State of 6 Cal., 67 F.3d 708, 715 (9th Cir. 1995) (“The Eleventh Amendment’s grant of sovereign 7 immunity bars monetary relief from state agencies such as California’s Bar Association 8 and Bar Court.”); O’Connor v. State of Nev., 686 F.2d 749, 750 (9th Cir. 1982) (“The 9 district court reasoned that the state bar is the investigative arm of the Supreme Court of 10 Nevada, charged with investigating and disciplining the legal profession of the state, and 11 as such an agency, it too is immune from suit in federal court under the eleventh 12 amendment. We agree.”) (internal citation omitted); Strojnik v. State Bar of Ariz., 446 F. 13 Supp. 3d 566, 573 (D. Ariz. 2020) (“Arizona state courts and courts in this District have 14 definitively held that the State Bar is an arm of the Arizona Supreme Court, and therefore, 15 the State Bar is immune from suit under the Eleventh Amendment.”) (internal citations 16 omitted); Drummond v. Stahl, 127 Ariz. 122, 126, 618 P.2d 616, 620 (Ct. App. 1980) 17 (“[P]ublic policy and legal precedent compel us to adopt the position that there is an 18 absolute privilege extended to anyone who files a complaint with the State Bar alleging 19 unethical conduct by an attorney. The State Bar of Arizona is an arm of the Arizona 20 Supreme Court.”). Accordingly, Plaintiff’s claims against the SBA must be dismissed.3 21

22 3 Plaintiff sues Defendant Shuman in her “individual and supervisory capacities.” (Doc. 64 at 1.) However, Plaintiff also asserts Defendant Shuman is sued only in her capacity as an 23 “investigator[] retained by Maricopa County in the State v. Andrich case and not as [a] prosecutor[] in any disciplinary proceeding.” To the extent this allegation is a factual 24 allegation, it does not contain sufficient detail to be plausible. To the extent it is a legal assertion, it is simply wrong and need not be accepted as true. Plaintiff’s assertion that Ex 25 Parte Young supports his claim against Defendant Shuman is unsupported. He offers no explanation for how her conduct constitutes an alleged violation of federal law which 26 entitles him to prospective injunctive relief. To the extent that his claims assume the alleged continued theft of his property constitute these violations, Plaintiff has not stated a federal 27 claim for the reasons discussed below. Therefore, to the extent that Plaintiff sues Defendant Shuman in her official capacity for monetary damages, the claims are barred by the 28 Eleventh Amendment. 1 b. Failure to State a § 1983 Claim 2 Even if Plaintiff were to overcome the above deficiencies, he has failed to state a 3 § 1983 claim. To the extent it is comprehensible, Plaintiff’s claim against Defendants 4 appears be premised upon their failure to investigate the theft of his property, recover the 5 files he alleges were stolen in that theft, and prosecute those he alleges are responsible for 6 the conversion. Yet “[t]he police have no affirmative obligation to investigate a crime in a 7 particular way or to protect one citizen from another even when one citizen deprives the 8 other of liberty of property.” Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d 1041, 1045 9 (9th Cir. 1994); see, e.g., Ferguson v. Cal. Dep’t of Corr., No. 2:06-CV-01165 CAS, 2014 10 WL 5602368, at *3 (E.D. Cal. Nov. 3, 2014) (“[C]ourts have frequently found section 1983 11 claims inadequate where the plaintiff’s alleged deprivation of rights rests solely on an 12 interference with the filing or investigation of a criminal complaint.”). Because the 13 Defendants owe no constitutional or federal statutory duty to Plaintiff to investigate or 14 prosecute the alleged crimes he purports to have reported, the complaint must be dismissed 15 for failure to state a claim upon which relief can be granted under Federal Rule of Civil 16 Procedure 12(b)(6). 17 Moreover, to the extent that Plaintiff pleads violations of other, established 18 constitutional rights, he fails to allege a plausible factual basis for those claims. He provides 19 no plausible basis for his belief that Defendants are engaged in a conspiracy to prevent 20 investigation of his lost property and thwart his post-conviction relief. It is implausible that 21 Defendants, who are law enforcement officers in this county and state, encouraged the 22 ongoing theft of his attorney-client files, obtained subpoenas on behalf of law enforcement, 23 refused to obtain search warrants for Plaintiff’s property, instructed Plaintiff’s attorney not 24 to file motions seeking out Plaintiff’s data, and instructed other defendants not to obtain 25 search warrants for Plaintiff’s property. Id. at 7, 16, 18, 22; see Moss v. U.S. Secret Serv., 26 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) 27 (“[F]or a complaint to survive a motion to dismiss, the non-conclusory ‘factual content,’ 28 and reasonable inferences from that content, must be plausibly suggestive of a claim 1 entitling the plaintiff to relief.”). Without sufficient allegations to provide some plausible 2 context, Plaintiff’s bare allegations are wholly unsupported, lack credibility and/or defy 3 common sense. The conspiracy claim is thus speculative, and implausible. 4 c. Standing 5 To the extent the Plaintiff sues persons or entities who can be sued in federal court 6 there are some additional problems. The Constitution of the United States limits the 7 jurisdiction of the federal courts to cases or controversies. U.S. Const. art III, § 2, cl. 1. 8 Article III standing includes three elements: (1) a concrete and particularized injury that is 9 “actual or imminent, not conjectural or hypothetical”; (2) “a causal connection between the 10 injury and the conduct complained of”; and (3) a likelihood that a favorable decision will 11 redress that injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (internal 12 quotations omitted). 13 “Nowhere in the Constitution or in the federal statutes has the judicial branch been 14 given power to monitor executive investigations before a case or controversy arises.” Jett 15 v. Castaneda, 578 F.2d 842, 845 (9th Cir. 1978). “[A] district court has no general 16 supervisory jurisdiction over the course of executive investigations.” Id. As such, “a private 17 citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of 18 another.” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). And “a citizen lacks standing 19 to contest the policies of the prosecuting authority when he himself is neither prosecuted 20 nor threatened with prosecution.” Id.; see also Town of Castle Rock v. Gonzales, 545 U.S. 21 748, 768 (2005) (“[B]enefit that a third party may receive from having someone else 22 arrested for a crime generally does not trigger protections under the Due Process Clause.”); 23 Parkhurst v. Tabor, 569 F.3d 861, 866 (8th Cir. 2009) (“The lower federal courts have 24 maintained the distinction in standing between those prosecuted by the state and those who 25 would urge the prosecution of others, even when the failure to prosecute was allegedly 26 discriminatory.”). 27 Frankly, Plaintiff’s complaint engages, at various points, in mutually inconsistent 28 pleadings. For example, Plaintiff asserts in the SAC that his “Complaint does not challenge 1 any state court decision” while at the same time asserting that the inadequate investigation 2 resulted in the denial of his Petition for Post-Conviction Relief and his inability to file an 3 effective habeas petition. 4 To the extent that Plaintiff maintains that his “Complaint does not challenge any 5 state court decision” he does not meet his burden of establishing standing. His complaint, 6 in such a circumstance would not be that Defendants did something to him, but that they 7 failed to do something to someone else—the parties who he alleges deprived him of his 8 computers and data.4 Yet if Plaintiff challenges Defendants’ allegedly inadequate 9 investigation because of its asserted effect on his Petition for Post-Conviction Relief and 10 habeas petition, he has no “judicially cognizable interest in the . . . nonprosecution” of these 11 alleged actors. Linda R.S., 410 U.S. at 619. He therefore did not suffer a legally cognizable 12 injury when Defendants chose to not investigate or prosecute the alleged theft of Plaintiff’s 13 data. Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1567 (10th Cir. 1993) (“The fact is that the 14 only one who stands to suffer direct injury in a disciplinary proceeding is the lawyer 15 involved. Doyle has no more standing to insert himself substantively into a license-based 16 discipline system than he has to compel the issuance of a license.”). Nor is Plaintiff under 17 actual or threatened prosecution itself. The crux of his claim is that he suffered harm 18 because of the Defendants’ failure to investigate and prosecute others. And that this failure 19 deprived him of an opportunity to bring a fruitful Petition for Post-Conviction Relief. Each 20 Count relies on an omission from a prosecutorial or investigative authority, specifically 21 that they failed to obtain search warrants to recover his property. Plaintiff therefore lacks 22 standing to contest the choices of the prosecuting and investigating authorities in this case 23 as pled. See Ortiz v. Ortiz, No. 119CV01416AWISAB, 2019 WL 5682832, at *5 (E.D. Cal. 24 Nov. 1, 2019) (finding that the Plaintiff did not “have a protected interest under the due 25 process clause to an adequate investigation” concerning his property interest in a vehicle); 26 Scheidler v. Avery, No. C12-5996 RBL, 2015 WL 7294544, at *8 (W.D. Wash. Nov.

27 4 To the extent that Plaintiff’s complaint suggests a more direct harm, that Defendants’ investigation and prosecution of him was inadequately informed because they failed to 28 obtain the materials from his computer, his claim is nonetheless barred by the Heck Doctrine for the reasons stated below. 1 17, 2015). 2 d. The Heck Doctrine 3 Nevertheless, if Plaintiff’s complaint is that the Defendants engaged in an 4 inadequate investigation which resulted in the denial of his Petition for Post-Conviction 5 relief and his inability to bring an adequate habeas petition, his § 1983 claims are barred 6 by the favorable termination rule. The favorable termination rule, articulated in Heck v. 7 Humphrey, states that a prisoner cannot bring a § 1983 suit for damages where a judgment 8 in their favor would necessarily imply the invalidity of the underlying conviction or 9 sentence. If it would, the complaint must be dismissed unless the plaintiff can demonstrate 10 that the conviction or sentence has already been invalidated. 512 U.S. 477, 486–87 (1994). 11 Thus, if a “plaintiff’s action, even if successful, will not demonstrate the invalidity of any 12 outstanding criminal judgment against the plaintiff, the action should be allowed to 13 proceed, in the absence of some other bar to the suit.” Id. at 487 (internal citation omitted). 14 Accordingly, the doctrine is sensitive to the ultimate implication of an action, rather than 15 whether a plaintiff explicitly seeks a remedy compelling release. In Smithart v. Towery, 79 16 F.3d 951, 952 (9th Cir. 1996), for example, the Ninth Circuit found that the Heck doctrine 17 barred a false arrest claim that would have required a finding that there was no probable 18 cause for a plaintiff’s arrest. Yet it also concluded that Heck would not preclude the same 19 plaintiff’s excessive force claim “[b]ecause a successful section 1983 action for excessive 20 force would not necessarily imply the invalidity of [plaintiff’s] arrest or conviction[.]” Id. 21 To the extent that Plaintiff alleges that Defendants violated his constitutional rights 22 by failing to investigate the theft of his property, these alleged failures are inextricably 23 intertwined with the purported fact that Plaintiff would have had a meritorious post- 24 conviction relief claim had he had access to the information on his computer. The claims 25 are thus premised on the allegation that if Defendants had conducted an investigation, 26 Plaintiff’s conviction would be overturned. As such, his action is Heck-barred because 27 success on Plaintiff’s claims would undermine the integrity of his conviction, which has 28 not been vacated or reversed. Catchings v. Unknown U.S. DOJ Official, No. 19-8623 ODW 1 (PVC), 2020 WL 1894157, at *3 (C.D. Cal. Mar. 16, 2020) (finding the plaintiff’s claim 2 Heck-barred where he alleged that a failure to investigate state officials prevented him from 3 filing a meritorious post-conviction relief claim). In the alternative, Plaintiff’s claims are 4 also barred to the extent he asserts Defendants’ investigation and prosecution of him were 5 inadequately informed because they failed to obtain his property in their investigation. 6 Hoener v. Cnty. of Sonoma, No. C 03-00566CRB, 2004 WL 1811156, at *4 (N.D. Cal. 7 Aug. 5, 2004) (finding Plaintiff’s claim that her arrest for spousal abuse was caused by a 8 failure to investigate Heck-barred); see Kemper v. Super. Ct. of Alameda Cnty., No. C 09- 9 0320 JSW (PR), 2009 WL 252161, at *2 (N.D. Cal. Feb. 2, 2009).5 10 e. Timeliness 11 Section 1983 does not contain a limitations period, so federal courts look to the 12 applicable state statute of limitations to determine whether a complaint brought under 13 § 1983 is timely. Section 1983 actions are characterized as personal injury actions for 14 purposes of identifying the applicable statute of limitations. Wallace v. Kato, 549 U.S. 384, 15 387 (2007). In Arizona, the relevant provision is Arizona Revised Statute § 12-542, which 16 provides for a limitations period of two years from the date the cause of action accrues. 17 Although state law provides the statute of limitations, federal law determines when a civil 18 rights claim accrues. Morales v. City of Los Angeles, 214 F.3d 1151, 1153–54 (9th Cir. 19 2000). Under federal law, the time limit on a cause of action begins to run when the plaintiff 20 “knows or has reason to know of the injury which is the basis of the action.” Trotter v. Int’l

21 5 The SBA Defendants sought dismissal under the related Rooker-Feldman Doctrine, which is designed to bar “cases brought by state-court losers complaining of injuries caused 22 by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. 23 Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). “To determine whether an action functions as a de facto appeal, [courts] ‘pay close attention to the relief sought by the 24 federal-court plaintiff.” Cooper v. Ramos, 704 F.3d 772, 777–78 (9th Cir. 2012) (quoting Bianchi v. Rylaarsdam, 334 F.3d 895, 900 (9th Cir. 2003)). The Doctrine “applies only 25 when the federal plaintiff both asserts as her injury legal error or errors by the state court and seeks as her remedy relief from the state court judgment.” Kougasian v. TMSL, Inc., 26 359 F.3d 1136, 1140 (9th Cir. 2004). As Plaintiff pleads injuries stemming from Defendants’ alleged misconduct rather than the State Court’s, Heck is more applicable, and 27 prevents Plaintiff from seeking relief which undermines his convictions. To the extent the Arizona Supreme Court has ruled on Plaintiff’s civil claims, Rooker-Feldman is 28 inapplicable given Plaintiff’s prayer for relief does not seek relief from the state court’s judgments. 1 Longshoremen’s & Warehousemen’s Union Local 13, 704 F.2d 1141, 1143 (9th Cir. 1983). 2 Plaintiff’s allegations stem from Defendants’ alleged obstruction of his post- 3 conviction relief claim. As such, Plaintiff alleges he did not suffer an actual harm triggering 4 accrual of his § 1983 claims until the state court denied his Petition for Post-Conviction 5 relief on June 20, 2018. (Doc. 58 at 13.) Plaintiff’s alleged harms, however, were 6 reasonably known or knowable prior to the state court’s denial of his petition. His claims 7 rest not on the denial itself, but on the alleged constitutional violations which the 8 Defendants’ obstructions caused and constituted. He was aware of those alleged 9 constitutional violations, and the inaction which established them, prior to June 20, 2018. 10 Indeed, his SAC alleges that “[o]n January 8, 2015, Plaintiff contacted the Nordeen, Garcia, 11 SBA, Shuman and informed each that Meyers had stolen Plaintiff’s laptop and server hard 12 drives containing Plaintiff’s files and Plaintiff’s 300 former clients’ files.” (Doc. 64 at 16.) 13 And that “[o]n December 11, 2017, Plaintiff filed his pro se Petition for Post-Conviction 14 Relief without the correspondence and documents necessary to comply with Ariz. R. Crim. 15 P. 32.5(a)&(d), because Defendants would not either obtain and execute search warrants 16 for Plaintiff’s laptop server hard drive and folders upon Meyers, Singer Pistiner P.C. or 17 Kirka, or otherwise investigate Meyers theft of Plaintiff’s identity and Plaintiff’s 300 18 former clients’ identities.” Id. at 22. He was thus aware at the time of filing that his petition 19 was deficient because of Defendants’ alleged failures to investigate and prosecute the theft 20 of his data and client information. As such, this case was filed over two years after he was 21 aware of the alleged constitutional violations which makeup his complaint. 22 f. Plaintiff’s State-Law Claims 23 While courts have supplemental jurisdiction over state-law claims that arise from 24 the same nucleus of operative facts as federal question claims, courts normally decline to 25 exercise jurisdiction over state-law claims when they dismiss the attendant federal question 26 claims before trial. Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985) (“Generally, 27 dismissal of federal claims before trial dictates that the pendent state claims should also be 28 1 || dismissed.”). As discussed above, the Court lacks jurisdiction over Plaintiff’s federal || claims. 3 4 CONCLUSION 5 For the reasons set forth above, Plaintiff’s claims are dismissed. 6 IT IS THEREFORE ORDERED that Defendants Stacy Lynn Shuman and State 7\| Bar of Arizona’s Motion to Dismiss for Failure to State a Claim and Lack of Jurisdiction || (Doc. 43) is GRANTED. 9 IT IS FURTHER ORDERED that Defendants Allister Adel, David Beck, Jeffrey 10 || Duvendack, Jose Garcia, Heather L. Kirka, and Maricopa County’s Motion to Dismiss the 11 || Second Amended Complaint (Doc. 66) is GRANTED. 12 IT IS FURTHER ORDERED that Defendants Stacy Lynn Shuman and State Bar 13 || of Arizona’s Motion Request for Judicial Notice (Doc. 42) is DENIED as moot. 14 IT IS FURTHER ORDERED that Defendants State of Arizona and Attorney 15 || General Mark Brnovich’s Motion to Dismiss (Doc. 75) is DENIED as moot. 16 IT IS FURTHER ORDERED that Plaintiff's Motion to Clarify Briefing Schedule 17 || for State Defendants’ Motion to Dismiss for Lack of Subject Matter Jurisdiction Pursuant 18 || to Local Rule 12.1 (Doc. 76.) is DENIED as moot. 19 IT IS FURTHER ORDERED directing the Clerk of the Court to dismiss the 20 || Second Amended Complaint (Doc. 64) as follows: 21 1. The claims against Defendants Stacy Lynn Shuman in her official capacity, the 22 State Bar of Arizona, and the State of Arizona are dismissed with prejudice. 23 2. Defendant’s remaining claims are dismissed with leave to amend within 30 days. 24 Dated this 15th day of March, 2021. 25 Wi, 26 A Whacrsay Sooo) Chief United States District Judge 28

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