1 MDR 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gabriel Bassford, No. CV 22-00572-PHX-JAT (ESW) 10 Plaintiff, 11 v. ORDER 12 City of Mesa, et al., 13 Defendants.
15 Pro se Plaintiff Gabriel Bassford, who is not in custody, is proceeding in forma 16 pauperis. In an April 18, 2022 Order, the Court dismissed his civil rights Complaint 17 because he had failed to comply with Rule 8 of the Federal Rules of Civil Procedure. The 18 Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies 19 identified in the Order. 20 On May 18, 2022, Plaintiff filed a Motion for an Extension of Time to Amend 21 Complaint (Doc. 7) and a Motion to Allow Electronic Filing by a Party Appearing Without 22 an Attorney (Doc. 8). On May 25, 2022, Plaintiff filed his First Amended 23 Complaint (Doc. 9). He has also filed a June 6, 2022 “Notice of Constitutional Questions” 24 and an October 25, 2022 “Notice of Readiness.” 25 The Court will grant Plaintiff’s Motions; order Defendants Newby, Rangel, Clark, 26 Destefino, and Adams to answer Counts Two, Three, and Four; order Defendant City of 27 Mesa to answer Count Eight; and dismiss the remaining claims and Defendants without 28 prejudice. 1 I. Motion for an Extension of Time 2 In his Motion for an Extension of Time, Plaintiff seeks a one-week extension of 3 time to file his amended complaint. The Court, in its discretion, will grant the Motion and 4 will consider the First Amended Complaint timely filed. 5 II. Motion to Allow Electronic Filing 6 In his Motion to Allow Electronic Filing, Plaintiff states that he is representing 7 himself and is able to comply with all of the requirements for electronic filing. He has 8 attached the required registration form. The Court, in its discretion, will grant the Motion 9 to Allow Electronic Filing in this case only. Furthermore, Plaintiff is still required to 10 submit a clear, legible paper copy of every pleading or document filed, for use by the 11 Court. See LRCiv 5.4. 12 III. Statutory Screening of In Forma Pauperis Complaints 13 Pursuant to 28 U.S.C. § 1915(e)(2), in a case in which a plaintiff has been granted 14 in forma pauperis status, the Court shall dismiss the case “if the court determines that . . . 15 (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may 16 be granted; or (iii) seeks monetary relief against a defendant who is immune from such 17 relief.” 18 A pleading must contain a “short and plain statement of the claim showing that the 19 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does 20 not demand detailed factual allegations, “it demands more than an unadorned, the- 21 defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 22 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Id. 24 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 25 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 26 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 27 that allows the court to draw the reasonable inference that the defendant is liable for the 28 misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for 1 relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial 2 experience and common sense.” Id. at 679. Thus, although a plaintiff’s specific factual 3 allegations may be consistent with a constitutional claim, a court must assess whether there 4 are other “more likely explanations” for a defendant’s conduct. Id. at 681. 5 But as the United States Court of Appeals for the Ninth Circuit has instructed, courts 6 must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 7 (9th Cir. 2010). A “complaint [filed by a pro se plaintiff] ‘must be held to less stringent 8 standards than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 9 U.S. 89, 94 (2007) (per curiam)). 10 IV. First Amended Complaint 11 In his ten-count First Amended Complaint, Plaintiff sues the following Defendants: 12 the City of Mesa; the City of Mesa Police Department; Police Officers Kyler Newby, 13 Joseph Rangel, Phillip Clark, and Michael Destefino; Police Sergeant Joseph Adams; City 14 of Mesa Prosecutors John Doe and Lauren Ramirez; and John Drechsler. Plaintiff seeks 15 monetary damages and his attorney’s fees and costs of suit. 16 Plaintiff alleges as follows. Around 10:14 p.m. on October 9, 2021, Defendants 17 Newby, Rangel, and Clark were dispatched to a Circle K because an individual was causing 18 a disturbance at the store. (Doc. 9 at ¶ 22.)1 While Defendants Newby, Rangel, and Clark 19 were talking to Defendant Drechsler, who was the security guard at the Circle K, several 20 private citizens, including Plaintiff, walked onto the Circle K property to film the police 21 activities. (Id. at ¶¶ 3, 25-27.) When those private citizens began to get closer to the police 22 officers, Defendant Drechsler stopped the conversation with the police and asked that 23 everyone holding a camera on the property “be trespassed.” (Id. at ¶ 29.) 24 Plaintiff asserts that “[i]n a scheme spearheaded” by Defendant Drechsler, 25 Defendants Newby, Rangel, and Clark “colluded” with Defendant Drechsler to 26 “unlawfully trespass” Plaintiff and the other citizens “by enacting an unreasonable seizure
27 1 The citation refers to the document number generated by the Court’s Case 28 Management/Electronic Case Filing system and the paragraph number in the First Amended Complaint. 1 and search for filming the activity of the [police officers].” (Id. at ¶ 30.) Defendant Newby 2 personally detained and handcuffed Plaintiff. (Id. at ¶ 31.) Plaintiff told Defendant Newby 3 that he was violating Plaintiff’s Fourth Amendment rights by detaining him. (Id. at ¶ 34.) 4 Defendant Destefino arrived on the scene and saw Defendant Newby escort 5 Plaintiff, in handcuffs, to the side of the store and sit him on the side of the curb. (Id. 6 at ¶ 33.) While Defendant Newby went to talk to the Circle K manager, Defendant 7 Destefino “stood guard” over Plaintiff. (Id. at ¶ 35.) When Plaintiff asked why he was 8 being detained, Defendant Destefino told him that he was being detained for 9 trespassing. (Id.) Plaintiff explained to Defendant Destefino that “the law requires 10 reasonable notice to leave the property before being trespassed” and that he would have 11 left the property if he had “been given a reasonable warning to do so.” (Id.) Plaintiff 12 contends that because he told Defendant Destefino that he “had not been given notice by 13 way of a reasonable request to leave before being detained for trespassing,” Defendant 14 Destefino knew “of the law violation by his fellow officers” and “had a duty . . . to stop 15 the actions that were being taken on behalf of” Defendant City of Mesa Police 16 Department. (Id. at ¶ 36.) 17 When Defendant Destefino asked for Plaintiff’s first and last names, Plaintiff stated 18 that he wanted to talk to a supervisor. (Id. at ¶ 37.) Defendant Destefino called for a 19 supervisor. (Id.) Plaintiff again informed Defendant Destefino that: Plaintiff had been 20 unlawfully detained; Defendant City of Mesa was “being represented by his actions”; 21 Defendant Destefino had a duty to uphold the law and stop any unlawful actions by 22 Defendants Newby, Rangel, and Clark; and filming police activity is not a felony. (Id. 23 at ¶ 38.) 24 When Defendant Adams, who was the supervising officer, arrived, he spoke with 25 the Circle K management and was “briefed about the variables of the situation” by 26 Defendant Newby. (Id. at ¶ 39.) Defendant Adams “did not object” after hearing that 27 Defendant Newby intended to arrest and imprison Plaintiff. (Id.) Defendant Newby 28 1 returned and told Defendants Destefino and Rangel to take Plaintiff to the jail “to be booked 2 on the charge of trespass in the third degree.” (Id.) 3 Plaintiff alleges Defendant Newby released another citizen and “filed charges via 4 long form,” but told Plaintiff that he was “having [Plaintiff] imprisoned” at the jail. (Id. 5 at ¶ 40.) Defendant Destefino held Plaintiff by his handcuffed arms and searched 6 Plaintiff. (Id.) Plaintiff asked why he was being jailed “when he [was] willing to identify 7 himself under duress of further imprisonment.” (Id.) Defendant Newby explained that he 8 was the arresting officer and, under Mesa Police Department Policy Manual (DPM) 9 2.4.10(3)(D), he had the discretion to “imprison or release” Plaintiff. (Id. at ¶ 41.) 10 Plaintiff contends DPM 2.4.10(3)(d) is unlawful because the state statutes it “cites 11 for its authorities” are “void ab initio” because they “allow exceptions to due process of 12 law regarding arrest without a warrant.” (Id. at ¶¶ 47, 49.) Specifically, he claims Arizona 13 Revised Statutes sections 13-3883 and 13-3903 “are void ab initio because they allow for 14 arrest for misdemeanors and violations, and also release for these violations.” (Id. at ¶ 52.) 15 He also asserts that section 13-3903 is void “because it allows executive officers to arrest 16 and release, and take property (fingerprints and images of [the] arrestee) in violation of due 17 process, in accordance with the ‘[n]o takings clause’ under the Fourteenth 18 Amendment.” (Id. at ¶ 54.) Finally, he contends the statutes “clearly bypass the procedure 19 for bringing the arrestee before a magistrate when arrested without a warrant,” which he 20 contends permits an “executive officer” to perform a “judicial function,” in violation of the 21 “distribution of powers clause” of the Arizona Constitution. (Id. at ¶ 55.) 22 Plaintiff alleges that Defendants Newby and Destefino did not inform him of his 23 Miranda2 rights; searched him “without a breach of the peace, probable cause of a felony, 24 or a warrant”; and placed him in the back of Defendant Destefino’s patrol car to be 25 transported to the jail. (Id. at ¶ 42.) Plaintiff reiterates his assertion that DPM 2.4.10 is 26 unlawful and contends Defendant Destefino “negligently and willfully chose to follow 27 [Defendant] Newby’s directive, with the tacit agreement of [Defendants] Clark, Rangel,
28 2 Miranda v. Arizona, 384 U.S. 436 (1966). 1 and Adams,” and transported Plaintiff to the jail. (Id. at ¶ 56.) He asserts the police officer 2 Defendants had a duty to uphold federal law “by not enforcing the State’[s] void laws and 3 the Mesa Police Department’s void policy.” (Id.) 4 At the jail, Defendant Destefino asked for Plaintiff’s name and date of birth, but 5 Plaintiff “invoked his right to remain silent and right to have counsel present before 6 responding to questioning.” (Id. at ¶ 45.) Defendant Destefino told Plaintiff that the 7 “charges were not serious” and Plaintiff should “cooperate by providing the information 8 requested.” (Id.) Plaintiff did not “waive his rights to remain silent and have counsel 9 present.” (Id.) 10 Plaintiff contends that because he was arrested without a warrant, he should have 11 been taken directly to a magistrate “to determine whether his imprisonment was 12 lawful.” (Id. at ¶ 46.) He asserts that at the jail, he was subjected to “several assault and 13 batteries” because his personal property—his fingerprints and photograph—was taken 14 “without appearing before a magistrate or having a trial finding him guilty of a crime.” (Id. 15 at ¶ 57.) Plaintiff contends he was imprisoned for at least sixteen hours “without a warrant, 16 probable cause of a felony, or a breach of the peace.” (Id.) Consequently, his name, 17 photograph, and trespassing charge were included in the Maricopa County Sheriff’s Office 18 arrest records and were made available to the public. (Id.) 19 Plaintiff alleges that when he appeared in court and entered a not-guilty plea, the 20 prosecutor, Defendant Doe, had an “ethical duty to dismiss the charge based on the 21 insufficient evidence in the probable cause statement” submitted by Defendant 22 Newby.3 (Id. at ¶ 58.) He claims that based on the probable cause statement “a competent 23 prosecutor would have determined that the statement does not contain sufficient facts to
24 3 According to Plaintiff, the probable cause statement indicates that Plaintiff was 25 observed at the location to record police activity and did not enter the convenience store to make a purchase; Defendant Drechsler asked that Plaintiff and others “be trespassed”; the 26 store participated in “the City of Mesa no trespassing program” and the property was “adequately marked with no trespassing signage.” (Doc. 9 at ¶ 59.) The statement also 27 indicates that Plaintiff was verbally advised that he was detained by the police and turned around and attempted to walk away from the police. (Id.) Plaintiff asserts the no 28 trespassing program does not apply because it is only valid during non-business hours and only applies to homeless encampments. (Id. at ¶ 60.) 1 state a claim for trespass in the third degree” because the statute requires an individual to 2 knowingly enter or remain unlawfully “after a reasonable request to leave by a law 3 enforcement officer, the owner or any other person having lawful control over such 4 property, or reasonable notice prohibiting entry,” and the probable cause statement does 5 not state that Plaintiff received a reasonable request to leave or reasonable notice 6 prohibiting entry. (Id. at ¶ 61.) 7 Plaintiff states that he met with Defendant Ramirez on November 2, 2022, and she 8 offered him the option of a plea deal or a trial. (Id. at ¶ 62.) He claims the “prosecution 9 was malicious” because the prosecution intended to “proceed to trial on the basis of the 10 probable cause statement which lacked sufficient facts” and Rule 42(a) of the Rules of the 11 Arizona Supreme Court states that a prosecutor “must refrain from proceeding in a case 12 that is not supported by probable cause.” (Id.) Plaintiff did not plead guilty and was given 13 a pretrial court date. (Id.) 14 On November 8, 2021, a prosecutor submitted a motion to dismiss without 15 prejudice, which the court granted. (Id. at ¶ 63.) Plaintiff subsequently filed a motion to 16 dismiss with prejudice, but the court denied the motion, thereby leaving the case open for 17 future prosecution. (Id. at ¶¶ 64-65.) 18 In Count One, Plaintiff raises a claim regarding a “Conspiracy to Deprive Plaintiff 19 of Civil Rights,” in violation of § 1983 and Arizona Revised Statutes section 13-1003(A). 20 Plaintiff contends Defendants Newby, Rangel, Clark, Destefino, Adams, and Drechsler 21 “knowingly agreed, conspired, and acted in concert for the express purpose” of depriving 22 Plaintiff of his “First Amendment liberty,” in retaliation for Plaintiff exercising his First 23 Amendment right to film police officers in the course of their public duties, “by concocting 24 a trespass in the third degree.” (Id. at ¶ 70.) 25 Plaintiff claims these Defendants knew they “were engaged in a conspiracy to 26 commit the predicate acts,” including filing a probable cause statement “based upon 27 deliberately fabricated evidence”; knew the “predicate acts were part of an unlawful seizure 28 and search”; “knew about and agreed to facilitate [Defendant] Drechsler’s scheme to 1 fraudulently concoct a claim of trespass” to undermine Plaintiff’s First Amendment right 2 to film the police activity. (Id. at ¶¶ 71-72.) He asserts the “participation and agreement 3 of each of them was necessary to allow the commission of this unlawful seizure and 4 search.” (Id. at ¶ 71.) Plaintiff also contends that as part of this conspiracy, these 5 Defendants committed an unlawful search and seizure, filed a deliberately fabricated 6 charge of trespassing, and committed false arrest, false imprisonment, perjury, and 7 malicious prosecution. (Id. at ¶ 72.) 8 In Count Two, Plaintiff alleges he was subjected to a false arrest, in violation of his 9 Fourth Amendment rights. He claims Defendants Newby, Rangel, Clark, Adams, and 10 Destefino unlawfully seized him, in violation of his Fourth Amendment right to “a 11 warranted seizure or reasonable search based upon probable cause of a felony,” in 12 retaliation for exercising his right to film public officials. (Id. at ¶¶ 83, 85.) Plaintiff 13 contends Defendant Drechsler is also responsible for the false arrest because he “directly 14 spearheaded the scheme to have Plaintiff trespassed” for exercising his right to film the 15 police. (Id. at ¶ 84.) 16 In Count Three, Plaintiff contends he was deprived of his First Amendment right 17 to express himself by recording public officials. (Id. at ¶ 95.) He claims Defendants 18 Newby, Rangel, Clark, Destefino, Adams, and Drechsler “conspir[ed]” to deprive him of 19 his “First Amendment liberty to film government officials[] who are performing their 20 duties in public view” by “alleging a perjured claim of trespass” so Plaintiff would be 21 unlawfully arrested. (Id. at ¶ 93.) Plaintiff contends Defendant Drechsler is also 22 responsible for the unlawful imprisonment because he “directly spearheaded the scheme to 23 have Plaintiff trespassed.” (Id. at ¶ 94.) 24 In Count Four, Plaintiff alleges he was falsely imprisoned, in violation of his 25 Fourth Amendment rights. He claims Defendants Newby, Rangel, Clark, Adams, and 26 Destefino unlawfully imprisoned him, in violation of his Fourth Amendment right to “a 27 warranted seizure or a reasonable search based upon probable cause of a felony.” (Id. 28 at ¶ 105.). He also contends Defendants Newby, Rangel, Clark, Destefino, and Adams 1 imprisoned him by not taking him directly to a magistrate after being arrested without a 2 warrant, as required by the Fourth Amendment. (Id..) Plaintiff asserts Defendants Newby, 3 Rangel, Clark, Destefino, Adams, and Drechsler “conspir[ed]” to deprive him of his First 4 Amendment right to film government officials performing their duties in public view by 5 “alleging a perjured claim of trespass” so Plaintiff would be unlawfully imprisoned. (Id. 6 at ¶ 103.) Plaintiff contends Defendant Drechsler is also responsible for the unlawful 7 imprisonment because he “directly spearheaded the scheme to have Plaintiff 8 trespassed.” (Id. at ¶ 104.) 9 In Count Five, Plaintiff alleges Defendants Newby and Destefino “violated his 10 Miranda rights” and the Fifth and Sixth Amendments because they did not inform him of 11 his rights to remain silent and to have counsel present before answering questions and that 12 that anything he said can and will be used against him in a court of law. (Id. at ¶¶ 114-116.) 13 In Count Six, Plaintiff asserts Defendants Newby, Rangel, Clark, Destefino, 14 Adams, and Drechsler violated § 1983 and Arizona Revised Statutes section 13-2702(A)(2) 15 by filing a “fabricated charge of trespassing” with the City of Mesa Prosecutor’s 16 Office. (Id. at ¶ 125.) Plaintiff contends Defendant Drechsler is also responsible for the 17 “perjured charge of trespass” because he “directly spearheaded the scheme to have Plaintiff 18 trespassed” and because his witness statement was filed with the City of Mesa Prosecutor’s 19 Office as part of Defendant Newby’s report. (Id. at ¶ 126.) Plaintiff claims the “perjured 20 statement of trespass” resulted in false imprisonment and a malicious prosecution by the 21 City of Mesa Prosecutor’s Office. (Id. at ¶ 127.) 22 In Count Seven, Plaintiff alleges Defendants Ramirez and John Doe violated his 23 Fifth Amendment rights by subjecting him to a malicious prosecution. (Id. at ¶ 136.) He 24 claims they prosecuted him “using a probable cause statement that is wanton for sufficient 25 facts to state a claim” for third-degree trespass. (Id.) He claims the prosecution was 26 ultimately dismissed pursuant to a motion for dismissal filed by the City of Mesa 27 Prosecutor’s Office. (Id. at ¶ 137.) 28 . . . . 1 In Count Eight, Plaintiff alleges Defendant Mesa Police Department violated the 2 Fourth Amendment by maintaining an unlawful departmental policy. (Id. at ¶ 147.) 3 Specifically, he claims DPM 2.4.10 is unlawful because it allows “arrest for violations of 4 the law less than a misdemeanor” and allows “executive officers the power to release an 5 arrestee at their discretion[,] in violation of the due process of law.” (Id. at ¶ 146.) 6 In Count Nine, Plaintiff alleges Defendants Newby, Rangel, Clark, Destefino, 7 Adams, Ramirez, John Doe, Drechsler, and the Mesa Police Department deprived him of 8 his Fourteenth Amendment right to equal protection. He claims Defendants Newby, 9 Rangel, Clark, and Adams unlawfully seized, searched, and imprisoned him in retaliation 10 for exercising his First Amendment right to film public officials. (Id. at ¶ 155.) He asserts 11 Defendant Drechsler is responsible for the false arrest because he “directly spearheaded 12 the scheme to have Plaintiff trespassed.” (Id. at ¶ 156.) Plaintiff also contends Defendants 13 prosecuted him by “using a probable cause statement that is wanton, on its face, for 14 sufficient facts to state a claim” for third-degree trespass. (Id. at ¶ 157.) 15 In Count Ten, Plaintiff raises a claim under § 1983 for “Respondeat 16 Superior/Vicarious Liability” against Defendant City of Mesa. He claims that Defendant 17 City of Mesa is vicariously liable for the “tortious conduct” of Defendants Newby, Rangel, 18 Clark, Destefino, Adams, Ramirez, and John Doe and that Defendants Newby, Rangel, 19 Clark, Destefino, and Adams “used the Mesa Prosecutor’s Office” to help them “achieve 20 their goal of a malicious prosecution” against Plaintiff. (Id. at ¶¶ 166-68.) 21 V. Discussion 22 Although pro se pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 23 520-21 (1972), conclusory and vague allegations will not support a cause of action. Ivey 24 v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982). Further, a liberal interpretation of a 25 civil rights complaint may not supply essential elements of the claim that were not initially 26 pled. Id. 27 . . . . 28 . . . . 1 A. Defendant Drechsler 2 “Like the state-action requirement of the Fourteenth Amendment, the under-color- 3 of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter 4 how discriminatory or wrongful.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 5 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “[S]tate action requires 6 both an alleged constitutional deprivation ‘caused by the exercise of some right or privilege 7 created by the State or by a rule of conduct imposed by the State or by a person for whom 8 the State is responsible,’ and that ‘the party charged with the deprivation must be a person 9 who may fairly be said to be a state actor.’” Id. (quoting Lugar v. Edmondson Oil Co., 457 10 U.S. 922, 937 (1982)). 11 Defendant Drechsler is a private party, not a state actor. Moreover, although private 12 parties who are jointly engaged with state officials in the challenged action are acting under 13 color of law, “merely complaining to the police does not convert a private party into a state 14 actor. Nor is execution by a private party of a sworn complaint which forms the basis of 15 an arrest enough to convert the private party’s acts into state action.” Collins v. 16 Womancare, 878 F.2d 1145, 1154-55 (9th Cir. 1989) (internal citations omitted). See also 17 Vazquez v. Combs, 2004 WL 2404224, at *4 (S.D.N.Y. Oct. 22, 2004) (“[M]erely filing a 18 complaint with the police, reporting a crime, requesting criminal investigation of a person, 19 or seeking a restraining order, even if the complaint or report is deliberately false, does not 20 give rise to a claim against the complainant for a civil rights violation.”). Thus, the Court 21 will dismiss without prejudice Defendant Drechsler. 22 B. Conspiracy Claims 23 To state a conspiracy claim, a plaintiff must show “an agreement or ‘meeting of the 24 minds’ to violate constitutional rights.’” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) 25 (citation omitted). The Court “need not, however, accept as true allegations that . . . are 26 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell 27 v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), amended on other grounds, 275 28 F.3d 1187 (9th Cir. 2001); see also Woodrum v. Woodward County, 866 F.2d 1121, 1126 1 (9th Cir. 1989) (conclusory allegations of conspiracy did not support a § 1983 claim); 2 Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988) (“A mere allegation 3 of conspiracy without factual specificity is insufficient.”). 4 Plaintiff has not made any factual allegations to support an agreement or meeting of 5 the minds between Defendants. See Iqbal, 556 U.S. at 678 (“Threadbare recitals of the 6 elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 7 Nor is there a “conspiracy” simply because Defendants engaged in the same conduct. See 8 Myers v. City of Hermosa Beach, 299 F. App’x 744, 747 (9th Cir. 2008) (“Before a 9 conspiracy claim can be sustained, a plaintiff must show a meeting of the minds by the so- 10 called conspirators. . . . [T]he evidence adduced must demonstrate more than the mere fact 11 that two people did or said the same thing; the evidence must actually point to an 12 agreement.”) (citations omitted); cf. Ting v. United States, 927 F.2d 1504, 1512-13 (9th 13 Cir. 1991) (finding insufficient evidence that defendants “conspired” to distort the facts 14 surrounding a shooting, although the agents had a post-shooting meeting to discuss the 15 plaintiff’s arrest, failed to explain an injury to the plaintiff’s arm, and allegedly made false 16 statements regarding the circumstances of the shooting). Absent more, Plaintiff’s 17 allegations are too vague and conclusory to state a conspiracy claim. Thus, the Court will 18 dismiss without prejudice Count One and the various claims of “conspiracy” throughout 19 the First Amended Complaint. 20 C. Counts Two, Three, and Four 21 Liberally construed, Plaintiff has stated claims against Defendants Newby, Rangel, 22 Clark, Destefino, and Adams for false arrest (Count Two), violation of his First 23 Amendment rights (Count Three), and false imprisonment (Count Four). The Court will 24 require these Defendants to answer these claims. 25 D. Count Five – Miranda Violation 26 The failure to read Miranda warnings does not, without more, violate Plaintiff’s 27 constitutional rights and cannot be grounds for a claim under § 1983. See Chavez v. 28 Martinez, 538 U.S. 760, 772 (2003) (absent the use of a coerced statement in a criminal 1 case, the “failure to read Miranda warnings . . . d[oes] not violate [a person’s] constitutional 2 rights and cannot be grounds for a § 1983 action.”). Thus, the Court will dismiss without 3 prejudice Count Five. 4 E. Count Six – False Statements 5 Plaintiff contends Defendants Newby, Rangel, Clark, Destefino, and Adams filed 6 “with the Mesa Prosecutor’s Office a fabricated charge of trespassing” and provided a 7 “perjured statement of trespassing.” While Plaintiff alleges he was arrested, imprisoned, 8 and prosecuted despite the facts not satisfying the elements of third-degree trespassing, he 9 Plaintiff does not identify what portion of Defendant Newby’s probable cause statement 10 was false or perjurious. Absent more, Plaintiff’s allegations are too vague and conclusory 11 to state a claim. Thus, the Court will dismiss without prejudice Count Six. 12 F. Count Seven – Malicious Prosecution 13 Prosecutors are absolutely immune from liability for damages under § 1983 for their 14 conduct in “initiating a prosecution and in presenting the State’s case” insofar as that 15 conduct is “intimately associated with the judicial phase of the criminal process.” Buckley 16 v. Fitzsimmons, 509 U.S. 259, 270 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 430- 17 31 (1976)). Immunity even extends to prosecutors for “eliciting false or defamatory 18 testimony from witnesses or for making false or defamatory statements during, and related 19 to, judicial proceedings.” Buckley, 509 U.S. at 270; see also Broam v. Bogan, 320 F.3d 20 1023, 1029-30 (9th Cir. 2003) (prosecutor absolutely immune from liability for failure to 21 investigate the accusations against a defendant before filing charges; for knowingly using 22 false testimony at trial; and for deciding not to preserve or turn over exculpatory material 23 before trial, during trial, or after conviction); Roe v. City & County of S.F., 109 F.3d 578, 24 583-84 (9th Cir. 1997) (absolute immunity for decision to prosecute or not to prosecute 25 and for professional evaluation of a witness and evidence assembled by the police). The 26 malicious prosecution claim against Defendants Ramirez and John Doe is entirely based 27 on their prosecutorial decisions. Thus, the Court will dismiss without prejudice Count 28 Seven. 1 G. Count Eight – Unlawful Departmental Policy 2 Defendant Mesa Police Department is a subpart of the City of Mesa, not a separate 3 entity for purposes of suit. Gotbaum v. City of Phx., 617 F. Supp. 2d 878, 886 (D. Ariz. 4 2008); see Braillard v. Maricopa County, 232 P.3d 1263, 1269 (Ariz. Ct. App. 2010) 5 (county sheriff’s office is a nonjural entity); see also Vicente v. City of Prescott, 2012 WL 6 1438695, at *3 (D. Ariz. 2012) (city fire department is a nonjural entity); Wilson v. Yavapai 7 County Sheriff’s Office, 2012 WL 1067959, at *4 (D. Ariz. 2012) (county sheriff’s office 8 and county attorney’s office are nonjural entities). Because Defendant Mesa Police 9 Department is not a separate entity, it is not capable of being separately sued. Thus, the 10 Court will dismiss Defendant Mesa Police Department. 11 Liberally construed, Plaintiff has stated a claim against Defendant City of Mesa 12 based on the allegedly unlawful Mesa Police Department Policy Manual policy. The Court 13 will require Defendant City of Mesa to answer Count Eight. 14 H. Count Nine – Equal Protection 15 The Equal Protection Clause requires that persons who are similarly situated be 16 treated alike. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). An 17 equal protection claim may be established by showing that the defendant intentionally 18 discriminated against the plaintiff based on the plaintiff’s membership in a protected class, 19 Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), or that similarly situated 20 individuals were intentionally treated differently without a rational basis for the difference 21 in treatment, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). 22 “When an equal protection claim is premised on unique treatment rather than on a 23 classification, the Supreme Court has described it as a ‘class of one’ claim.” North Pacifica 24 LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (quoting Olech, 528 U.S. at 25 564). 26 Plaintiff does not allege that he is a member of a protected class or that there was 27 no rational basis for treating him differently than other individuals who were arrested at 28 1 the Circle K but were not taken to the police station. Thus, the Court will dismiss without 2 prejudice Count Nine. 3 I. Count Ten – Respondeat Superior/Vicarious Liability 4 There is no respondeat superior liability under § 1983, and therefore, a defendant’s 5 position as the supervisor of persons who allegedly violated Plaintiff’s constitutional rights 6 does not impose liability. Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Hamilton 7 v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d 1040, 1045 (9th 8 Cir. 1989). “Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must 9 plead that each Government-official defendant, through the official’s own individual 10 actions, has violated the Constitution.” Iqbal, 556 U.S. at 676. Thus, the Court will dismiss 11 without prejudice Count Ten. 12 VI. Warnings 13 A. Address Changes 14 Plaintiff must file and serve a notice of a change of address in accordance with Rule 15 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 16 relief with a notice of change of address. Failure to comply may result in dismissal of this 17 action. 18 B. Copies 19 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a 20 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 21 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff 22 must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure 23 to comply may result in the filing being stricken without further notice to Plaintiff. 24 C. Possible Dismissal 25 If Plaintiff fails to timely comply with every provision of this Order, including these 26 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 27 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 28 to comply with any order of the Court). 1 IT IS ORDERED: 2 (1) Plaintiff’s Motion for an Extension of Time to Amend Complaint (Doc. 7) is 3 granted. 4 (2) Plaintiff’s Motion to Allow Electronic Filing by a Party Appearing Without 5 an Attorney (Doc. 8) is granted in this case only. Plaintiff has already submitted the 6 required registration form. Plaintiff is required to comply with all rules outlined in the 7 District of Arizona’s Case Management/Electronic Case Filing Administrative Policies and 8 Procedures Manual, have access to the required equipment and software, have a personal 9 electronic mailbox of sufficient capacity to send and receive electronic notice of case- 10 related transmissions, be able to electronically transmit documents to the Court in .pdf 11 format, register as a subscriber to PACER (Public Access to Electronic Records) within 5 12 days of the date of this Order, and comply with the privacy policy of the Judicial 13 Conference of the United States and the E-Government Act of 2002. Any misuse of the 14 ECF system will result in immediate discontinuation of this privilege and disabling of 15 the password assigned to Plaintiff. 16 (3) Defendants Ramirez, City of Mesa Police Department, John Doe, and 17 Drechsler are dismissed without prejudice. 18 (4) Counts One, Five, Six, Seven, Nine, and Ten are dismissed without 19 prejudice. If Plaintiff attempts to amend these claims to address the shortcomings 20 identified in this Order, the second amended complaint must be retyped or rewritten in its 21 entirety (including those claims that were not dismissed), and Plaintiff must comply with 22 Rule 15 of the Federal Rules of Civil Procedure and Rule 15.1 of the Local Rules of Civil 23 Procedure. 24 (5) Defendants Newby, Rangel, Clark, Destefino, and Adams must answer 25 Counts Two, Three, and Four; Defendant City of Mesa must answer Count Eight. 26 (6) Plaintiff must either serve Defendants City of Mesa, Newby, Rangel, Clark, 27 Destefino, and Adams or seek a waiver of service for each Defendant. 28 . . . . 1 (7) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Complaint on a Defendant within 90 days of the 3 | filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the 4} action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m). 5 (8) Defendants City of Mesa, Newby, Rangel, Clark, Destefino, and Adams must 6 | answer the relevant portions of the First Amended Complaint or otherwise respond by 7 | appropriate motion within the time provided by the applicable provisions of Rule 12(a) of 8 | the Federal Rules of Civil Procedure. 9 (9) Any answer or response must state the specific Defendant by name on whose 10 | behalf it is filed. The Court may strike any answer, response, or other motion or paper that 11 | does not identify the specific Defendant by name on whose behalf it is filed. 12 (10) This matter is assigned to the standard track pursuant to Rule 16.2(b)(3) 13 | of the Local Rules of Civil Procedure. 14 (11) This matter is referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). 17 (12) If properly completed, the Clerk of Court must issue the proposed 18 | Summonses for Defendants City of Mesa (Doc. 3 at 3-4), Rangel (9-10), Adams (11-12), 19 | Newby (15-16), and Destefino (19-20).* 20 Dated this 18th day of November, 2022. 21 22 a 23 _ James A. Teil Org Senior United States District Judge 25 26 27
4 No summons was submitted for Defendant Clark.